ORDER ON MOTIONS TO EXCLUDE EXPERT TESTIMONY AND MOTION TO STRIKE

*1 This matter is before the court on the following pretrial motions:

(1) Plaintiff's [sic] Motion to Exclude Testimony of Defendant's Expert Witness, John M. Palmeri (“Motion to Exclude Palmeri”) [#46, filed October 30, 2020];

(2) Defendant's Fed. R. Evid. 702 Motion to Exclude Expert Opinion Testimony of Plaintiffs’ Expert Robert Deitz (“Motion to Exclude Deitz”) [#48, filed November 6, 2020];

(3) Defendant's Fed. R. Evid. 702 Motion to Exclude Expert Opinion Testimony of Plaintiff's [sic] Expert Mark Guilford (“Motion to Exclude Guilford”) [#49, filed November 6, 2020] (collectively, the “Motions to Exclude”); and

(4) Motion to Strike Affidavit of Mark Guilford Submitted with Plaintiff's [sic] Response to State Farm's Fed. R. Evid. 702 Motion to Exclude Opinion Testimony of Mark Guilford, and Supplemental Report Dated November 9, 2020 (“Motion to Strike”) [#63, filed December 9, 2020] (and with the Motions to Exclude, “the Motions”).

The undersigned Magistrate Judge fully presides over this matter pursuant to the Parties’ Consent [#13] and the Order of Reference dated January 21, 2020 [#14]. The court has reviewed the Motions to Exclude, the Motion to Strike, their respective briefing, the entire docket, and the applicable case law. For the reasons set forth below, I respectfully DENY Plaintiff's [sic] Motion to Exclude Palmeri [#46]; GRANT IN PART and DENY IN PART Defendant's Motion to Exclude Deitz [#48]; GRANT IN PART and DENY IN PART the Motion to Strike [#63]; and DENY Defendant's Motion to Exclude Guilford [#49].

BACKGROUND

The court has discussed in detail the background of this case in previous rulings, see, e.g., [#80], and discusses it here only as it pertains to the pending Motions. This case involves an insurance dispute between the Stokers and their insurance provider, State Farm, arising from an incident in which Plaintiff Officer Jeremiah Stoker (“Officer Stoker”) was injured. See [#6]. The Stokers sued State Farm in the District Court for Arapahoe County on or about November 4, 2019, raising claims of (1) breach of contract; (2) bad faith breach of an insurance contract; and (3) unreasonable delay or denial of insurance benefits under Colo. Rev. Stat. §§ 10-13-1115, -1116, each arising out of State Farm's alleged improper refusal to pay what Officer Stoker is owed pursuant to his insurance policies. See [id.].[1] In addition to the damages sought by Officer Stoker, his wife, Elizabeth Stoker (“Ms. Stoker”), seeks damages for loss of consortium. [Id. at 8-9]. The case was removed to federal court under 28 U.S.C. § 1332 on December 17, 2019. See [#1; #6].

Each side has designated expert witnesses in this case who are now the subject of the opposing side's motion to exclude. [#46; #48; #49]. Specifically, State Farm designated John Palmeri (“Mr. Palmeri”) as an “insurance claim handling expert” to opine on issues related to insurance-industry standards and State Farm's handling of Officer Stoker's insurance claim in light of those standards. [#54 at 2]. The Stokers designated Robert Deitz (“Mr. Deitz”) and Mark Guilford (“Mr. Guilford”) as experts in this case. See [#57; #58]. The Stokers retained Mr. Deitz to opine as to “insurance industry standards and State Farm's failure to comply with those standards.” [#57 at 3]. In addition, the Stokers intend to call Mr. Guilford as an expert witness to “provide a breakdown on the reasonable medical value of the surgical procedures” recommended by Officer Stoker's physician. [#58 at 2].

*2 Also at issue in this matter is the Stokers’ submission of (1) an affidavit from Mr. Guilford attached to their Response [#58-5] to the Motion to Exclude Guilford, as well as the Stokers’ inclusion of a letter signed by Mr. Guilford with their Seventh Supplemental Disclosures, see [#71-4],[2] which State Farm characterizes as a supplemental expert report.[3] See [#63]. State Farm filed a Motion to Strike the affidavit and the supplemental expert report on December 9, 2020, arguing that these additional documents constitute untimely expert disclosures under Rule 26(a) of the Federal Rules of Civil Procedure. [Id.].

Being fully advised of the premises, the court turns to considering whether some or all of the opinions offered by Mr. Palmeri, Mr. Deitz, and Mr. Guilford and identified in the Motions to Exclude should be excluded pursuant to Rule 702 of the Federal Rules of Evidence, Daubert v. Merrell Dow Pharmaceuticals, and their progeny. In addition, the court considers whether the affidavit of Mr. Guilford [#58-5] and his purported supplemental expert report [#71-4] should be stricken from the record.

LEGAL STANDARDS

Rule 702 of the Federal Rules of Evidence permits:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. As noted by the Advisory Committee when the Rule was promulgated, “[a]n intelligent evaluation of facts is often difficult or impossible without the application of some scientific, technical, or other specialized knowledge.” Fed. R. Evid. 702 advisory committee's note to 1937 rule.

It is well established that trial courts are charged with the responsibility of acting as gatekeepers of expert testimony to ensure that expert testimony or evidence admitted is not only relevant, but also reliable. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147–152 (1999); Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 588–89 (1993). To fulfill that gatekeeper function, courts within the United States Court of Appeals for the Tenth Circuit (“Tenth Circuit”) conduct a two-part inquiry. First, this court considers whether the expert's proffered testimony has a reliable basis in the knowledge and experience of his or her discipline by conducting a preliminary inquiry into the expert's qualifications and the admissibility of the proffered evidence, i.e., whether the reasoning or methodology underlying the testimony is valid. Cook v. Rockwell Int'l Corp., 580 F. Supp. 2d 1071, 1082 (D. Colo. 2006) (citing Butler v. A.O. Smith Corp., 400 F.3d 1227, 1232-33 (10th Cir. 2004)). Second, the court considers whether the proposed testimony is sufficiently relevant to the issues presented to the factfinder. See id. The party offering the expert opinion bears the burden of establishing its admissibility, including the foundational requirements by a preponderance of the evidence. United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009); United States v. Crabbe, 556 F. Supp. 2d 1217, 1220 (D. Colo. 2008).

*3 “Generally, the district court should focus on an expert's methodology rather than the conclusions it generates.” Dodge v. Cotter Corp., 328 F.3d 1212, 1222 (10th Cir. 2003). To that end, courts consider the following non-exhaustive factors in analyzing whether a particular expert opinion meets the requirements of Rule 702, Daubert, and their progeny:

(1) whether the opinion at issue is susceptible to testing and has been subjected to such testing; (2) whether the opinion has been subjected to peer review; (3) whether there is a known or potential rate of error associated with the methodology used and whether there are standards controlling the technique's operation; and (4) whether the theory has been accepted in the scientific community.

Id. The court's analysis is opinion-centric, rather than expert-centric. See United States v. Nacchio, 608 F. Supp. 2d 1237, 1251 (D. Colo. 2009).

ANALYSIS

I. Motion to Exclude Palmeri

State Farm designated John Palmeri (“Mr. Palmeri”), an attorney, as an “insurance claim handling expert” to offer testimony about insurance-industry standards and whether State Farm complied with those standards when handling Officer Stoker's claim. [#54 at 2]. The Stokers move to exclude Mr. Palmeri's testimony, arguing that Mr. Palmeri lacks the necessary knowledge and experience to opine on claims handling and insurance industry standards. [#46 at 3]. Specifically, the Stokers note that Mr. Palmeri “has no experience handling, adjusting or managing [underinsured motorist] claims as a claims adjuster or manager,” has not authored any publications related to claims handling, and does not belong to any professional organizations “that write or implement insurance industry standards on insurance industry claims handling.” [Id. at 5-6]. In its Response [#54, filed November 20, 2020], State Farm argues that Mr. Palmeri is qualified to testify about insurance industry standards because (1) for ten to twelve years, Mr. Palmeri “coordinated training for hundreds of insurance adjusters,” [#54 at 4]; (2) Mr. Palmeri has “evaluated a number of claims including pre-litigation claims in the context of the adjustment of that claim,” [id.]; and (3) as an attorney, Mr. Palmeri has “litigated numerous Colorado insurance cases and has been involved in reported Colorado decisions on insurance.” [Id. at 5].

In the alternative, the Stokers assert that Mr. Palmeri's opinions should be excluded because they “consist of unsupported speculation and lack any sort of methodology.” [#46 at 3-4]. The Stokers contend that Mr. Palmeri “provides no analysis into his facts, data, or methodology for how he arrives at his opinion,” [id. at 7], and that Mr. Palmeri's opinions are “simply subjective speculation.” [Id. at 8]. State Farm counters that Mr. Palmeri's opinions are well-explained and grounded in fact and argues that the Stokers’ argument goes towards weight rather than admissibility. [#54 at 6-8].

In his affirmative expert report, Mr. Palmeri provides an overview of insurance law, [#46-12 at 10-11], and states that, in his opinion, “State Farm handled this matter within insurance industry standards.” [Id. at 11; see also id. at 12 (“[I]t is my opinion that State Farm acted reasonably and appropriately, well within insurance industry standards.”)]. Moreover, in his rebuttal expert report, Mr. Palmeri indicates that he reviewed the expert report of the Stokers’ expert, Mr. Deitz, and rebuts Mr. Deitz's opinions regarding the reasonableness of State Farm's actions in handling Officer Stoker's claims. [#46-13 at 1-2].

*4 In defense of Mr. Palmeri's qualifications, State Farm asserts that “[a]ttorneys have routinely testified as claim handling experts in the District of Colorado,” relying on O'Sullivan v. Geico Casualty Co., 233 F. Supp. 3d 917 (D. Colo. 2017). [#54 at 4]. The court is not convinced that O'Sullivan supports State Farm's argument. In O'Sullivan, the defendant challenged the plaintiff's disclosure of an attorney as a rebuttal expert witness on the basis that, because that expert “went beyond the limits of rebutting the opinions of [the defendant's expert],” the expert should have been disclosed as an affirmative expert. 233 F. Supp. 3d at 930-31. While the court ultimately concluded that the expert would be permitted to testify, see [id. at 934], the court did not analyze the expert's qualifications to opine about insurance industry standards as an attorney. See generally [id.]. Similarly, other cases within this Circuit have also permitted attorneys to testify as to insurance industry standards, but have done so without specific analysis on the qualification issue. See, e.g., Domokos v. Shelter Mut. Ins. Co., No. 18-cv-00903-WJM-NRN, 2020 WL 869854, at *3 (D. Colo. Feb. 21, 2020); Etherton v. Owners Ins. Co., No. 10-cv-00892-PAB-KLM, 2013 WL 68702, at *5 (D. Colo. Jan. 7, 2013); Moses v. Halstead, 477 F. Supp. 3d 1119, 1124 (D. Kan. 2007). Due to this lack of analysis, these cases provide little guidance in determining whether Mr. Palmeri is qualified to testify as an expert here.

Mr. Palmeri's curriculum vitae indicates that he has substantial experience in the practice of law. See [#54-2]. Specifically, Mr. Palmeri has practiced as an attorney for over 35 years, has produced numerous legal publications, and has participated in a number of legal seminars. [Id. at 1]. However, none of Mr. Palmeri's publications, seminars, or professional organization memberships indicate a specialty or emphasis in insurance law. See generally [id.]. Thus, on its face, Mr. Palmeri's curriculum vitae does not provide robust support for his qualifications to opine as to insurance industry standards.

However, Mr. Palmeri indicated in his deposition that he has litigated Colorado insurance cases and has “been involved in reported decisions in Colorado cases [that] set the insurance industry standard.” [#54-1 at 47:11-14].[4] Mr. Palmeri also stated that, approximately “once a month or twice a month,” he is “asked to review cases that typically involve an unreasonable delay or denial or bad faith,” [id. at 10:22-24], and has been hired by insurance companies to evaluate insurance claims, including pre-litigation claims. [Id. at 41:6-15]. When he was at his former law firm, Mr. Palmeri coordinated a training program for insurance adjusters “a number of times,” [id. at 20:20-21:2], which included “presentations regarding bad faith, first-party bad faith, [and] third-party bad faith.” [Id. at 106:2-6]. Mr. Palmeri considers himself an expert in insurance law and insurance matters. [Id. at 11:25-12:2].

The court finds that State Farm has met its burden of demonstrating that Mr. Palmeri is qualified to testify as an expert regarding insurance industry standards. While Mr. Palmeri has not worked himself as a claims handler, this is not dispositive of his qualifications to testify about the insurance industry, see Southerland v. Argonaut Ins. Co., 794 P.2d 1102, 1107 (Colo. App. 1990) (the court “reject[ing] the notion that only present or former employees of the insurance industry are qualified to render expert opinions about its operations”), particularly given Mr. Palmeri's knowledge of and experience in insurance cases. He has routinely litigated Colorado insurance cases, regularly reviews insurance claims, and has been hired by insurance companies to evaluate insurance claims. Ultimately, the court concludes that Mr. Palmeri's testimony concerning industry standards will be helpful to the jury. See Fed. R. Evid. 702; see also Southerland, 794 P.2d at 1106 (permitting two attorneys to testify as expert witnesses because they had “familiarity and knowledge of insurance industry standards in meeting the [defendants’] responsibilities to injured workers.”).

*5 Next, the Stokers argue that Mr. Palmeri's opinions should be excluded because they lack reliability. [#46 at 6-9].[5] The Stokers contend that Mr. Palmeri provides no analysis into the facts, data, or methodology behind his opinion that State Farm acted within insurance industry standards. [Id. at 7]. Specifically, the Stokers challenge Mr. Palmeri's conclusions that “insurance issues added to the complexity of the case and that [Officer Stoker's] claims are fairly debatable” as “simply subjective speculation.” [Id. at 8.]. State Farm responds that Mr. Palmeri's are admissible under Rule 702 because they “were reliably reached based on the facts of the case, and application of insurance standards, as set forth in his report.” [#54 at 6].

In his expert report, Mr. Palmeri first indicates which documents he reviewed in forming his opinion [#46-12 at 1-2] and then goes through the facts of the case in detail, citing to the record as necessary. See [id. at 2-10]. Mr. Palmeri opines that “State Farm handled this matter within insurance industry standards,” as Officer Stoker's claim “presented a number of interesting issues.” [Id. at 11]. Specifically, Mr. Palmeri states that Officer Stoker saw a number of medical professionals who employed different approaches to Officer Stoker's medical care and treatment, which, according to Mr. Palmeri, “rendered this case fairly debatable.” [Id. at 11-12]. Moreover, Mr. Palmeri opines that the number of insurance policies at play in this matter “added to the complexity of the claim,” which “provide[s] a backdrop to State Farm's evaluation” of Officer Stoker's claim. [Id. at 12]. Mr. Palmeri then reviewed State Farm's actions in this case and stated that, in his opinion, “State Farm acted reasonably and appropriately, well within insurance industry standards.” [Id.].

The court disagrees with the Stokers’ argument that Mr. Palmeri's opinions are not supported by facts, data, or methodology. Although Mr. Palmeri does not expressly set forth his methodology in his affirmative expert report, his methodology is clear: he reviewed the facts of the case and the relevant documents and analyzed those facts in light of insurance industry standards, of which he is aware due to his experience litigating insurance cases and reviewing insurance claims. See [id. at 10-12]. The court “finds it sufficiently clear from the overall content and organization of [Mr. Palmeri's] report that his methodology amounts to explaining what he knows of insurance industry standards and practices based on his experience, explaining the facts and evidence he reviewed in this case,” and then opining as to why he believes that State Farm acted within industry standards. O'Sullivan, 233 F. Supp. 3d at 925. “[T]his method is, as a general matter, sufficiently reliable” for Mr. Palmeri to offer expert testimony in this case. Id.; see also Domokos, 2020 WL 869854, at *5 (finding that an expert sufficiently set forth how he reached his conclusion through his experience in the insurance industry). The court finds that Mr. Palmeri's opinions are supported by a sufficient methodology and will therefore not exclude Mr. Palmeri's opinions outright.

*6 However, the court concludes that Mr. Palmeri cannot opine as to legal standards or whether State Farm violated Colo. Rev. Stat. § 10-3-1104, or any other law, as he attempts to do in his expert report. See e.g., [#46-12 at 12 (“[I]n my opinion, there was no violation of C.R.S. § 10-3-1104.)”].[6] While Mr. Palmeri may testify as to insurance industry standards, and may testify that State Farm's compliance with those standards, he may not direct the jury's understanding of the applicable legal rights and obligations of the parties, i.e. “define the legal parameters within which the jury must exercise its fact-finding function.” See TBL Collectibles, Inc. v. Owners Ins. Co., 285 F. Supp. 3d 1170, 1184 (D. Colo. 2018) (citing Specht v. Jensen, 853 F.2d 805, 809 (10th Cir. 1988)). To do so would be to usurp the role of the trial court. Specht, 853 F.2d at 810. Put another way, Mr. Palmeri is “permitted to testify generally about his understanding of the law and how it impacts his understanding of the standards that govern the insurance industry,” but not to particular holdings of cases or how such holdings apply to this case. See Lua v. QBE Ins. Corp., No. 18-cv-01233-KLM, 2019 WL 5104477, at *5 (D. Colo. Oct. 11, 2019).

He also may not “state legal conclusions drawn by applying the law to facts,” A.E. ex rel. Evans v. Indep. Sch. Dist. No. 25, 936 F.2d 472, 476 (10th Cir. 1991), as “such ultimate conclusions would not be helpful to the jury and would improperly intrude on its fact-finding function.” O'Sullivan, 233 F. Supp. 3d at 929. Thus, Mr. Palmeri will not be permitted to testify at trial as to whether State Farm's actions did or did not violate any laws or whether State Farm did or did not act in bad faith. Rather, Mr. Palmeri's opinions must be limited to areas such as whether State Farm did or did not comply with industry standards, or whether its actions were or were not reasonable subject to those industry standards.

For the above-stated reasons, I will DENY Plaintiff's [sic] Motion to Exclude Testimony of Defendant's Expert Witness, John M. Palmeri. [#46], but Mr. Palmeri will not be permitted to testify at trial as to legal standards or conclusions as set forth herein. In addition, as other courts in this District have, this court will give a limiting instruction prior to Mr. Palmeri's testimony at trial. Such instruction will make clear that the court will instruct the jury on the law and, to the extent that Mr. Palmeri's testimony differs from the court's instructions, the jury must credit the court's instructions over such testimony. The instruction will also inform the jurors that they may give Mr. Palmeri's testimony whatever weight they deem appropriate, and that they are the ultimate finders of fact in this case. The parties should work together to attempt to stipulate to a proposed limiting instruction and should include such stipulated instruction in their set of instructions. To the extent that the parties are not able to reach a stipulation, the court will accept competing proposed limiting instructions and make an appropriate ruling. King v. Allstate Ins. Co., No. 11-cv-00103-WJM-BNB, 2013 WL 3943607, at *5 (D. Colo. July 31, 2013).

II. Motion to Exclude Deitz

*7 State Farm seeks to exclude the opinions of the Stokers’ claims handling expert, Mr. Deitz, in their entirety. See [#48]. First, State Farm asserts that Mr. Deitz is not qualified to render opinions on claims handling because, according to State Farm, Mr. Deitz “does not have the requisite knowledge and information regarding the current insurance industry standards” and lacks sufficient experience in claims handling to qualify as an expert. [Id. at 3-4]. State Farm notes that Mr. Deitz's “experience is based on his employment experience with one insurer, over 19 years ago” and he “has not been involved with claim handling and adjusting claims for an insurance company since 2001.” [Id. at 3]. Moreover, State Farm notes that Mr. Deitz is not a lawyer and asserts that “[h]is familiarity with Colorado standards is questionable.” [Id. at 4]. The Stokers respond that Mr. Deitz is qualified as an expert in claims handling because, in addition to Mr. Deitz's two-decade-long career as an insurance claims professional, he currently works as a claims consultant, through which he has “reviewed hundreds of claims filed involving dozens of insurers in approximately forty states.” [#57 at 5]. Moreover, Mr. Deitz has taught CLE seminars about insurance industry standards, including seminars in Colorado, and is “extensively educated in insurance claims practices, Colorado case law, and local jury instructions.” [Id.].

In addition, State Farm argues that Mr. Deitz's opinions are unreliable because (1) Mr. Deitz's opinions do not rely upon industry standards, but his own subjective conclusions, [id. at 5, 7]; (2) Mr. Deitz's opinions would interfere with the court's duty to instruct the jury and usurp the jury's fact-finding role, [id. at 8]; and (3) Mr. Deitz's opinions usurp the jury's function in weighing witness credibility and the evidence in the case. [Id. at 10-12]. The Stokers disagree. They argue that Mr. Deitz's opinions are reliable because he uses a methodology that is well-accepted in the industry and because he explains how he formed his opinions based on that methodology; finally, they assert that his opinions will assist the jury. [Id. at 10, 13].

According to his curriculum vitae, Mr. Deitz worked as a claims representative for Farmers Insurance for 14 years. [#57-2 at 2-3]. For the past 20 years, he has “been engaged nationwide as a consultant and expert witness in the field of insurance, most particularly in claims practices of insurers” at Insurance Claims Consulting, Inc. [Id. at 3]. Mr. Deitz states that he has “personally handled thousands of claim files, and [has] reviewed and supervised several thousand more” and has been “continuously engaged in education and study of insurance claim practices, and reasonable industry customs and standards.” [Id.]. In his expert report, Mr. Deitz states that, based on his “knowledge, skill, training[,] experience, and education,” it is his opinion that State Farm acted contrary to accepted reasonable insurance industry standards, failed to act as an insurance company should have, and “knowingly and with purpose misrepresented and concealed its position on how much coverage was determined to apply to [Officer Stoker's] loss.” [#48-1 at 1, 22, 25].

With respect to State Farm's contention that Mr. Deitz is not qualified as an expert because his career as a claims adjuster ended in 2001, State Farm cites to no authority indicating that an expert's experience or credentials expire after a certain period of time. See [#48]; see also Zander v. Craig Hosp., No. 09-cv-02121-REB-BNB, 2010 WL 3307614, at*2 (D. Colo. Aug. 19, 2010) (“Admittedly, Dr. Mukand's relevant hands-on experience is not of recent vintage, but defendants present no actual authority, aside from their own ipse dixit, for their assertion that an expert's relevant experience need be of any particular vintage to be admissible.”). Moreover, such a contention ignores the fact that Mr. Deitz has worked as an insurance claims consultant for the last two decades. Specifically, Mr. Deitz has “been engaged nationwide as a consultant and expert witness in the field of insurance, most particularly in claims practices of insurers,” during which he has “reviewed over 600 claim files.” [#48-1 at 3]. In addition, Mr. Deitz states that he has been “continuously engaged in education and study of insurance claim practices[ ] and reasonable industry customs and standards” and has attended and presented at insurance-industry workshops and seminars throughout the country. [Id.]. The court finds that, based on his experience, Mr. Deitz is qualified to testify on insurance claims handling. See Am. Auto. Ins. Co. v. First Mercury Ins. Co., No. 13:CV-439 MCA/LF, 2017 WL 4410780, at *5 (D. N.M. Sept. 30, 2017) (rejecting argument that claims handling expert's experience was stale where the expert had “been continuously involved with the insurance industry, including claims handling”).[7]

*8 Next, State Farm challenges the reliability of Mr. Deitz's opinions. State Farm argues that (1) Mr. Deitz's opinions are not reliable because they are mere ipse dixit opinions, [#48 at 5]; (2) Mr. Deitz's opinions interfere with the court's duty to instruct the jury on the law, [id. at 8]; and (3) in rendering his opinions, Mr. Deitz usurps the fact-finding role of the jury. [Id. at 10]. The court addresses each of these arguments in turn.

“Nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only be the ipse dixit of the expert.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997); see also Mooring Cap. Fund, LLC v. Phoenix Cent., Inc., 2009 WL 4263359, at *5 (W.D. Okla. Feb. 12, 2009) (“[A]n expert's opinions are not admissible merely because the expert says, in effect, ‘trust me, I know.’ ”). State Farm argues that Mr. Deitz's opinions “do not rely upon any reliable industry standards” but instead “direct the jury to speculative ‘because I say so’ conclusions,” [#48 at 6], and highlights a number of opinions that it contends are simply Mr. Deitz's ipse dixit. See [id. at 6-7].

State Farm relies on Turner v. State Farm Mutual Automobile Insurance Co., No. 12-cv-01843-MSK-BNB, 2015 WL 1297844 (D. Colo. Mar. 19, 2015), in support of its argument that Mr. Deitz's opinions are unreliable ipse dixit statements. See [id. at 6]. The court finds that Turner is distinguishable from the present matter. In Turner, the court determined that an expert's opinions lacked an adequate foundation under Rule 702 because, while the expert stated that an insurance company had denied payment in violation of insurance industry standards, he failed to adequately identify those standards and failed to include “[a] source, context, or other information about how [the alleged standards] were formulated or why they are considered industry standards.” 2015 WL 1297844, at *6. According to the court, it was unclear “whether [the expert's opinions were] based on a reliable methodology, personal experience, or a matter of personal belief.” Id. The court concluded that an expert's opinions were “conclusory, ipse dixit[ ] statements.” Id.

In contrast to Turner, Mr. Deitz provides an adequate foundation here. In his expert report, Mr. Deitz lists insurance industry standards that he obtained from a Colorado statute—Colo. Rev. Stat. § 1104—and from an insurance law treatise, and expands upon those stated standards explaining why such standards exist and the ways in which a claims adjuster may or may not meet those standards. [#48-1 at 10-15]. Mr. Deitz explains that those standards are “recognized as reasonable industry custom and practice” and are “recognized generally as accepted standards on a national basis.” [Id. at 15-16]. He then states that the basis of his opinions “includes the methodology of analyzing [those] reasonable industry standards in relationship to the facts of the case.” [Id. at 20].

The court cannot conclude that Mr. Deitz's opinions are unsupported ipse dixit statements. Mr. Deitz identifies what he perceives as the relevant insurance industry standards, explains those standards, and states that he relied on his experience in the insurance industry in forming his opinions as to whether State Farm met those standards. [Id. at 1, 20]. Contrary to State Farm's argument, see [#48 at 6], Mr. Deitz is not required to “precisely identif[y] the standards he relies upon to issue” each of his specific opinions. See Domokos, 2020 WL 869854, at *5 (“Mr. Allen makes clear at the beginning of his report, and again in his discussion of insurance industry standards generally, that he reaches his conclusion through 43 years of experience in the insurance industry.... Mr. Allen was not required to repeat all of this again immediately before giving his opinions ‘e’ through ‘k.’ The Court therefore overrules Shelter's objections to these opinions.”). The court finds that Mr. Deitz's opinions are not improper ipse dixit statements.

*9 Next, State Farm argues that Mr. Deitz's opinions should be excluded because such opinions interfere with the court's ability to instruct the jury on the applicable law and usurp the jury's fact-finding function. [#48 at 8, 10]. The court addresses these arguments together. According to State Farm, Mr. Deitz's opinions improperly “embrac[e] the ultimate legal questions in this case on whether State Farm acted unreasonably or in bad faith in handling [Officer Stoker's] claims” and should therefore be excluded. [Id. at 8]. Moreover, State Farm asserts that Mr. Deitz's opinions commandeer the jury's fact-finding function by “offer[ing] inappropriate commentary on what the evidence shows.” [Id. at 10].

As set forth above, an expert may testify as to insurance industry standards and may opine as to an insurance company's compliance with those standards. George v Metro. Prop. & Cas. Ins. Co., No. 18-cv-01663-PAB-SKC, 2020 WL 70424, at *8 (D. Colo. Jan. 2, 2020). Thus, the court will not exclude Mr. Deitz's opinions insofar as he offers testimony regarding insurance industry standards and whether he believes State Farm complied with those standards.[8] However, as with Mr. Palmeri, Mr. Deitz will not be permitted to testify as to any ultimate issues in this case, including State Farm's level of culpability in handling Officer Stoker's claim. See, e.g., [#48-1 at 25 (Mr. Deitz opining that “[t]he claims file is evidence that causes me to opine that this claim handling represents indifference, recklessness” and that “State Farm knowingly and with purpose misrepresented and concealed its position on how much coverage was determined to apply to this loss.”)]. See Cox v. Glanz, No. 11-cv-00457-JED-FHM, 2014 WL 916644, at *4 (N.D. Okla. Mar. 10, 2014) (holding that “conclusions regarding deliberate indifference are not appropriate for expert testimony because they are conclusions as to an ultimate issue of law”). In addition, the Stokers are cautioned that Mr. Deitz may not offer any opinions at trial related to the ultimate issue of whether State Farm violated the law. A.E. ex rel. Evans, 936 F.2d at 476. Nor will he be permitted to opine as to the applicable law, as opposed to industry standards. See TBL Collectibles, Inc. v. Owners Ins. Co., 285 F. Supp. 3d at 1184. For these reasons, I will GRANT IN PART and DENY IN PART Defendant's Fed. R. Evid. 702 Motion to Exclude Expert Opinion Testimony of Plaintiffs’ Expert Robert Deitz [#48].

III. Motion to Exclude Guilford and Motion to Strike

Finally, State Farm moves to exclude the opinions of Mr. Guilford on the basis that his opinions are unreliable. [#49]. In addition, State Farm seeks to strike Mr. Guilford's affidavit [#58-5] and supplemental expert report [#71-4] from the record under Rule 37(c)(1) of the Federal Rules of Civil Procedure on the basis that they are untimely under Rule 26(a)(2)(A). Because the consideration of those challenged documents could impact the court's ruling on the Motion to Exclude, the court first considers the Motion to Strike and the related arguments.[9]

A. Motion to Strike

1. Background

*10 Pursuant to the court's original Scheduling Order [#16], the Parties’ affirmative expert disclosures were due on July 27, 2020, while rebuttal expert disclosures were due on August 27, 2020. [#16 at 2]. Thereafter, the Stokers filed Plaintiffs’ Forthwith Motion to Amend the Scheduling Order to Allow a Sixty (60) Day Extension on Expert Disclosures. [#36]. The court granted the Stokers’ motion to amend and reset the affirmative and rebuttal expert disclosure deadlines for September 27, 2020 and October 27, 2020, respectively. [#40 at 2]. In so doing, the court stated that “[n]o further extensions [would] be granted absent extraordinary circumstances.” [Id.]. The discovery deadline was set for November 20, 2020. [Id.].[10]

On September 27, 2020, the Stokers disclosed Mr. Guilford as an affirmative expert. [#72 at 2]. State Farm filed its Motion to Exclude Mr. Guilford's opinions on November 6, 2020. [#49]. On November 9, 2020, the Stokers submitted their Seventh Supplemental Disclosures, see [#63-2], which included a letter from Mr. Guilford dated November 9, 2020 and titled “Regarding: Working File for Jeremiah Stoker.” [#71-4]. The Stokers submitted their Response to State Farm's Motion to Exclude on November 25, 2020, which was accompanied by an affidavit from Mr. Guilford setting forth Mr. Guilford's qualifications and the bases for his opinions. See [#58-5].

State Farm asserts that the affidavit and supplemental report “contain new information not included [in] Mr. Guilford's Rule 26(a)(2) report.” [#63 at ¶ 6.] State Farm claims that these documents “are in fact late-disclosed supplemental reports submitted with the apparent aim of strengthening and deepening the opinions expressed in Mr. Guilford's report.” [Id.]. State Farm argues that the documents should be stricken from the record and not considered in the court's ruling on State Farm's Motion to Exclude Guilford because there is no substantial justification for the Stokers’ failure to disclose these documents by the court's deadline. In addition, State Farm contends that permitting the submission of such documents—after State Farm filed its motion to exclude—would prejudice State Farm. [Id. at ¶¶ 9-10].

The Stokers respond that the additional documents do not change Mr. Guilford's opinions or “the costs of [Officer Stoker's] surgical procedures outlined in [Mr. Guilford's] report.” [#71 at 2]. Specifically, the Stokers categorize the supplemental expert report as a “cover letter” that “simply explains what is in [Mr. Guilford's] expert file” and “outlines the data [Mr. Guilford] used[,] which was previously disclosed along with his expert report.” [Id. at 4]. In addition, the Stokers argue that the affidavit merely summarizes Mr. Guilford's qualifications and methodology, which were already disclosed. [Id. at 4]. For these reasons, the Stokers assert that the consideration of the additional documents will not prejudice State Farm, and they argue that the documents in question should not be stricken. [Id. at 6].

2. Legal Standard

Rule 26(a)(2) of the Federal Rules of Civil Procedure provides that a party must disclose to all other parties the identity of any person who may be used at trial to present evidence under Rule 702, 703, or 705 of the Federal Rules of Evidence. Fed. R. Civ. P. 26(a)(2)(A). A retained expert must provide a report that contains “(1) a complete statement of all opinions the witness will express and the basis and reasons for them; (2) the facts or data considered by the witness in forming them (3) any exhibits that will be used to summarize or support them; (4) the witness's qualifications, including a list of all publications authored in the previous 10 years; and (5) a statement of the compensation to be paid for the study and testimony in the case.” Fed. R. Civ. P. 26(a)(2)(B). The Rule also dictates that parties shall disclose affirmative experts first, and disclose rebuttal witnesses within 30 days after the other party's disclosure, unless otherwise set by the court. Fed. R. Civ. P. 26(a)(2)(D).

*11 Rule 37(c) governs violations of Rule 26(a)(2). Fed. R. Civ. P. 37(c). Rule 37(c)(1) of the Federal Rules of Civil Procedure provides:

If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard:

(A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure;

(B) may inform the jury of the party's failure; and

Fed. R. Civ. P. 37(c)(1). The determination as to whether a Rule 26(a) violation is justified or harmless is entrusted to the broad discretion of the court. Woodworker's Supply, Inc. v. Principal Mt. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999). In exercising this discretion, the court's consideration is guided by the following four factors: (1) the prejudice or surprise to the impacted party; (2) the ability to cure the prejudice; (3) the potential for trial disruption; and (4) the erring party's bad faith or willfulness. Id.

In seeking to avoid a preclusion sanction, the party responsible for a Rule 26(a) violation bears the burden of showing the failure was substantially justified or harmless. Sender v. Mann, 225 F.R.D. 645, 655 (D. Colo. 2004) (citation omitted); see also Contour PAK, Inc. v. Expedice, Inc., No. 08-cv-01091-PAB-KMT, 2009 WL 2490138, at *1 (D. Colo. Aug. 14, 2009) (“The burden of establishing substantial justification and harmlessness is upon the party who is claimed to have failed to make the required disclosures.”) (citation omitted).

3. Analysis

Before considering whether the affidavit and supplemental expert report should be stricken, the court must first determine whether there was a Rule 26(a) violation. As set forth above, Rule 26(a) requires that an expert report contain “a complete statement of all opinions the witness will express and the basis and reasons for them,” as well as “the data or other information considered by the witness in forming the opinions.” Fed. R. Civ. P. 26(a)(2)(A). Thus, a Rule 26(a) violation occurs upon the filing of supplemental expert documents if the additional documents contain information beyond what was disclosed in the original expert report. Galaxy Ventures, LLC v. Rosenblum, No. CIV 03-1236 JH/LFG, 2005 WL 5988690, at *4 (D.N.M. July 21, 2005).

Supplemental Report. Upon a review of Mr. Guilford's initial expert report and the supplemental report, the court finds that the supplemental report contains new information not included in Mr. Guilford's initial expert report (the “Expert Report”). Mr. Guilford lists several references or data sources in the supplemental report that were not referenced at all in his Expert Report. See [#71-4 at 1-2] (describing data sets and codebooks purportedly used by Mr. Guilford in forming his opinions).[11] And the Stokers do not argue that this additional information was not available to Mr. Guilford prior to issuing the supplemental report, or that the new information is intended to correct the Expert Report, so as to fall into the exception set forth in Rule 26(e). See Fed. R. Civ. P. 26(e) (“A party is under a duty to supplement at appropriate intervals its disclosures under subdivision (a) if the party learns that in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.”). Nor does the record suggest that the additional information is newly discovered since the deadline and disclosure of the original Guilford Report. Thus, this court concludes that the supplemental expert report violates Rule 26.

*12 Affidavit. With respect to the affidavit, this court's analysis is more nuanced. In some instances, Mr. Guilford introduces information that is not in his Expert Report at all. For example, in his affidavit, Mr. Guilford states that “[b]ased on [his] 17 years of professional valuation experience, the most appropriate valuation approach for valuing the billed charges of medical services is the Market Approach[,] a common approach used by valuation experts across many industries. [#58-5 at ¶ 12]. He then goes on to explain the “market approach” and indicate that this approach is used in the valuation of medical services. [Id.]. However, Mr. Guilford does not discuss a “market approach” in his original Expert Report. See [#49-1]. Similarly, Mr. Guilford seeks to bolster his credentials by adding information with regard to AccuMed, including State Farm's use of AccuMed in unrelated cases, [#58-5 at ¶ 6], and provides additional information related to his training and education in his affidavit that is not included in his Expert Report. Compare [id. at ¶¶ 13-14] with [#49-1].

Again, the Stokers do not argue nor establish that this information was somehow not available to Mr. Guilford at the time he propounded his original Expert Report, or that this additional information seeks to correct the original Expert Report to bring it into the purview of Rule 26(e). With respect to the new information when compared to Mr. Guilford's original report, the court finds that, contrary to the Stokers’ argument, the originally disclosed Expert Report from Mr. Guilford did not contain “a complete statement of all opinions to be expressed and the basis and reasons therefor” as required by Rule 26(a). Thus, the submission of that additional information—after the discovery deadlines had passed— runs afoul of Rule 26(a). See Fed. R. Civ. P. 26(a) (stating that expert disclosures “shall be made at the times and in the sequence directed by the court”); see also Galaxy Ventures, 2005 WL 5988690, at *4 (finding that supplemental expert report was untimely when it included new information).

But in other instances, Mr. Guilford's affidavit further explains concepts or information contained in his original Expert Report. For instance, Mr. Guilford references and explains the 80th percentile methodology in his Expert Report. See [#49-1 at 2]. In his affidavit, Mr. Guilford references the “percentile methodology,” but further details why the 80th percentile method is used, and provides examples of that method's use throughout the industry, including listing other experts who rely on the 80th percentile to determine reasonable value and citing to sources which promote the use of the 80th percentile. [#58-5 at ¶¶ 18-19]. This extrapolation, in the context of responding to a Motion to Exclude that seeks to preclude Mr. Guilford based on deficiencies in his methodology [#49 at 3] seems appropriate to the court—particularly in light of the fact that this court would not expect Mr. Guilford simply to repeat the statements from his Expert Report had the court held an evidentiary hearing to consider the various Daubert challenges.[12]

*13 Sanction for Rule 26(a) Violation. Upon a finding of a Rule 26 violation, the court must determine what sanctions, if any, are appropriate. “If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information ... to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or harmless.” Fed. R. Civ. P. 37(c)(1). Courts consider the following factors in determining whether a violation of Rule 26(a) was justified or harmless: “1) the prejudice or surprise to the party against whom the testimony is offered; (2) the ability of the party to cure the prejudice; (3) the extent to which introducing such testimony would disrupt the trial; and (4) the moving party's bad faith or willfulness.” Woodworker's, 170 F.3d at 993. The court notes that, aside from asserting that State Farm has not been prejudiced by their late disclosure, the Stokers make no argument as to the Woodworker's factors. See [#71]. Similarly, while State Farm raises arguments as to bad faith and prejudice, the remaining Woodworker's factors are left unaddressed. See [#63].

With respect to the first Woodworker's factor, court concludes that while there is potential prejudice or surprise to State Farm, given the disclosure of such information after the deadline to file motions under Rule 702, the actual prejudice to State Farm, particularly in the context of the instant Motion to Exclude, is minimal. To ameliorate any potential prejudice, this court simply disregards the new information provided in the supplemental expert report and affidavit in considering the instant Motion to Exclude Guilford. But as to the presentation of trial evidence, this court finds that the Stokers have failed to meet their burden of demonstrating that their Rule 26(a) violations were either justified or harmless. See Contour PAK, 2009 WL 2490138, at *1 (citing Rule 37(c)(1) and noting that the burden of establishing substantial justification and harmlessness is upon the party who is claimed to have failed to make the required disclosures); Auraria Student Hous., 2015 WL 72360, at *4 (implicitly recognizing that the burden under the Woodworker's Supply factors rests with the party who failed to make timely disclosures). Cf. Galaxy Ventures, 2005 WL 5988690, at *5 (“To allow supplementation of reports with new opinions would thwart opposing counsel's ability to evaluate the strength and weakness of a case and to prepare to meet proofs at trial.”).

As a result, I will GRANT the Motion to Strike insofar as the Stokers now seek to rely upon the supplemental expert report or Market Approach to define the scope of Mr. Guilford's opinions at trial, and further limit Mr. Guilford to testifying to the credentials he identified in the original Expert Report, but otherwise DENY the Motion to Strike.

B. Motion to Exclude

State Farm seeks an order “excluding from trial Mr. Guilford's testimony, and striking the opinions contained in his report as inadmissible.” [#49 at 2]. State Farm does not argue that Mr. Guilford is not qualified to render his proffered opinions. See generally [id.]. Instead, State Farm asserts that Mr. Guilford's opinions are not reliable because his methodology is flawed. [Id. at 3-4]. State Farm contends that “[Mr. Guilford's] methodology ... is not reliable because it will always skew to [a] higher charge because it is based on the number of patients who have [been] treated, not the cost of treatment.” [Id. at 4]. State Farm implies that Mr. Guilford's opinion is not “scientifically valid,” [id.], and asserts that, because Mr. Guilford's methodology is unreliable, it is clear that Mr. Guilford “is concluding and finding data to support that conclusion.” [Id. at 5]. Moreover, State Farm argues that Mr. Guilford's opinions should be excluded because, due to his reliance on this flawed methodology, the probative value of his opinion evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. [Id. at 5-6]. In their Response [#58, filed November 25, 2020], the Stokers assert that Mr. Guilford's opinions are based on reliable principles and methods because “numerous large health insurance carriers ... all use the same method as Mr. Guilford to determine a usual, customary, and reasonable value for bills from out of network providers” and argue that the probative value of his opinion evidence is not outweighed by the danger of unfair prejudice because his opinions will be helpful to the jury.” [Id. at 4, 6-7]. To address Defendant's concerns regarding the impact of the supplemental expert report and Mr. Guilford's, all references to the affidavit or supplemental report in the Response are disregarded.

*14 In Mr. Guilford's Expert Report, he states that, in his opinion, the reasonable value of the billed charges for the procedures recommended by Dr. Eric Jamrich[13] is $587,687.00. [#49-1 at 1]. His methodology for arriving at that number is as follows: Mr. Guilford analyzed the billed charges related to the above-reference procedures from a “database of over 1.1 million providers located throughout the United States,” “pull[ed] historical billed charges from the databases of the same or similar procedures,” and “determine[d] the billing codes and associated charges of the other medical services that will likely be provided at the time of the procedures.” [Id.]. Then, he created an estimate of the customary and reasonable charges for those procedures based on the 80th percentile of the charges listed in the database. [Id. at 2]. Mr. Guilford explains that he uses the 80th percentile method, which is “broadly accepted” and “widely used” in his field, because it constitutes a “significant percentage” of procedures performed so as to generate a charge that is considered reasonable. [Id.; id. at 16]. In forming his opinions, Mr. Guilford “rel[ied] on bills, medical records, and other documents generated in connection with patients’ treatment,” but did not consider patients’ financial or other resources to obtain medical care. [Id. at 2].

Although State Farm frames its arguments as attacking the reliability of Mr. Guilford's methodology, the court finds that, in reality, State Farm's arguments go toward the correctness of Mr. Guilford's opinions, the choices he made in selecting data to rely upon, and the results of his analysis. See, e.g., [#49 at 4 (State Farm arguing that “Mr. Guilford's methodology is designed to normalize providers who charge higher amounts” and that “[Mr. Guilford's] methodology skews the numbers to the higher charge.”); #62 at 2 (arguing that Mr. Guilford's methodology “can lead to distorted outcomes” and “can lead to distortion in areas dominated by large healthcare providers and consequent control over pricing of procedures”).].

The court's task in ruling on the admissibility of Mr. Guilford's opinions is to determine whether the opinions are reliable, not whether they are correct. Cook, 580 F. Supp. 2d at 1084-85. “Maintaining this distinction between the evidentiary requirement of reliability and the higher standard of whether the expert's conclusions are correct or sufficient to prove the merits is indeed significant as it preserves the fact[-]finding role of the jury.” Id. (quotation omitted); see also Daubert, 509 U.S. at 596 (indicating that expert testimony evidence can by “shaky” and still admissible, and stating that “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking” such evidence). Thus, the court's inquiry cannot constitute a value judgment as to the correctness of a witness's opinion. Bitler v. A.O. Smith Corp., 400 F.3d 1227,1233 (10th Cir. 2005) (“[A] trial court's focus generally should not be upon the precise conclusions reached by the expert, but on the methodology employed in reaching those conclusions.”).

In his Expert Report, Mr. Guilford sets forth his qualifications, which State Farm does not challenge. See [#49-1 at 1; #49]. He then explains his “percentile method” and his decision, in employing that method, to use the 80th percentile of billed charges to determine a “reasonable and customary” charge, indicating that this 80th percentile method is “a broadly accepted method utilized by experts in [his] field.” [#49-1 at 2]. He also explains why billed charges are an appropriate metric to use in his analysis. [Id.; id. at 16-17].

The court finds that despite State Farm's arguments to the contrary, Mr. Guilford's opinions are sufficiently reliable to meet the Rule 702 threshold. To the extent that State Farm has identified what it believes are flaws in Mr. Guilford's methodology or analysis, State Farm may raise those issues on cross-examination. See Cook, 580 F. Supp. 2d at 1134 (arguments concerning the data relied upon by the expert go to the weight of the expert's opinions, not their admissibility).

*15 State Farm alternately asserts that Mr. Guilford's opinions should be excluded because the probative value of such opinions is outweighed by the danger of unfair prejudice, confusion or the issues, or the risk of misleading the jury. [#49 at 5]. In making this argument, State Farm raises the same or similar contentions as it did above: that Mr. Guilford's methodology wrongly skews the numbers to the highest prices—and ultimately to higher damages. [Id.].

Rule 403 of the Federal Rules of Evidence provides that a court “may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. Thus, even if testimony evidence meets the Rule 702 threshold, it may be excluded from trial if the likelihood that it is misinterpreted or that it confuses the jury outweighs its probative effect.

Here, the court concludes that the probative value of this evidence is not outweighed by the danger of unfair prejudice or confusing or misleading the jury. State Farm does not present an argument explaining why this evidence should be excluded beyond asserting that the evidence is incorrect; indeed, State Farm does not identify the unfair prejudice it argues it will suffer absent the exclusion of Mr. Guilford's opinions. See [#49 at 5-6]. Instead, State Farm focuses on its perceived errors in the testimony and states that the jury, upon hearing such testimony, might be confused or misled. [Id.]. However, it is the jury's task to ascertain the validity and credibility of evidence—not the court's. Moreover, to the extent that State Farm argues that the jury might be “misled into believing that [Mr. Guilford's methodology requires the 80th percentile metric,” the court finds that such a risk is low, see [#49-1 at 2 (Mr. Guilford indicating in his Expert Report that the 80th percentile method is “broadly accepted” and “widely used” and explaining the reasons for the purported common usage, but not indicating that only the 80th percentile may be used as a metric)], and thus does not outweigh the probative value of the evidence. As explained above, Mr. Guilford sufficiently explained his methodology and the basis for his opinions. To the extent that State Farm asserts that this evidence is likely to confuse the jury because of the errors in the opinion evidence, State Farm may address this issue at trial via cross-examination. See Two Moms & a Toy, LLC v. Int'l Playthings, LLC, No. 10-cv-02271-PAB-BNB, 2012 WL 5249459, at *6 (D. Colo. Oct. 24, 2012) (holding that “to the extent plaintiff argues that the alleged mistakes in Mr. Milner's report could confuse a jury, the Court finds that this concern is minimized because Two Moms may fully explore this issue at trial during cross-examination.”). For this reason, the court finds that Mr. Guilford's opinions need not be excluded under Rule 403. I will DENY the Motion to Exclude Mr. Guilford's opinions.

CONCLUSION

For the reasons set forth above, IT IS ORDERED that:

(1) Plaintiff's [sic] Motion to Exclude Testimony of Defendant's Expert Witness, John M. Palmeri [#46] is DENIED;

(2) The court will sua sponte exclude Mr. Palmeri's opinions insofar as they go to legal standards and/or legal conclusions;

(3) Defendant's Fed. R. Evid. 702 Motion to Exclude Expert Opinion Testimony of Plaintiffs’ Expert Robert Deitz [#48] is GRANTED IN PART and DENIED IN PART;

*16 (4) The court will exclude Mr. Deitz's opinions insofar as they go to ultimate issues;

(5) The Motion to Strike Affidavit of Mark Guilford Submitted with Plaintiff's [sic] Response to State Farm's Fed. R. Evid. 702 Motion to Exclude Opinion Testimony of Mark Guilford, and Supplemental Report Dated November 9, 2020 [#63] is GRANTED IN PART and DENIED IN PART;

(6) The affidavit of Mr. Guilford [#58-5] and Mr. Guilford's supplemental report [#71-4] are DISREGARDED for the purposes of adjudicating the Motion to Exclude Guilford; and

(7) Defendant's Fed. R. Evid. 702 Motion to Exclude Expert Opinion Testimony of Plaintiff's [sic] Expert Mark Guilford [#49] is DENIED, though his trial testimony will be limited in the manner as described herein.

Footnotes

[1]

On February 22, 2021, the court granted in part and denied in part “Plaintiffs’ Amended Motion for Leave to Amend Complaint to Add Exemplary Damages Against Defendant State Farm Automobile Insurance Company” [#55, filed November 23, 2020] and permitted the Stokers to add a request for exemplary damages for their common law bad faith claim. See [#80].

[2]

State Farm references this supplemental document as Exhibit B to its Motion to Strike. See [#63 at ¶ 4]. However, the document attached as Exhibit B does not contain the supplemental document; rather, it appears to be a list of the documents submitted as the Stokers’ Seventh Supplemental Disclosures. See [#63-2]. The supplemental document is attached to the Stokers’ Response [#71] to the Motion to Strike, see [#71-4], which the court will cite in this Order.

[3]

For purposes of clarity, the court will refer to this document as “the supplemental expert report.”

[4]

When citing a transcript, the court cites the document number generated by the Electronic Court Filing system, but the page and line numbers generated by the transcript.

[5]

To the extent that the Stokers argue that Mr. Palmeri's opinions are factually incorrect, see [#46 at 7-8 (asserting that some of Mr. Palmeri's opinions are “wholly unsubstantiated,” “incorrect and baseless,” and “erroneous”), the court concludes that these arguments go to the weight of Mr. Palmeri's testimony rather than its admissibility. See Auraria Student Hous. at the Regency, LLC v. Campus Vill. Apartments, LLC, No. 10-cv-02516-WJM-KLM, 2014 WL 4651643, at *5 (D. Colo. Sept. 18, 2014) (finding that the defendant's argument that an expert analyzed the wrong data “goes to the weight the jury should afford [the expert's] opinions rather than to their admissibility.”). Thus, the court declines to address both Parties’ arguments concerning factual disputes here. See [#46 at 7-8; #54 at 6-7].

[6]

The Stokers did not raise this argument in their Motion to Exclude. See [#46]. However, “[a] trial court is obligated to act as ‘gatekeeper’ of proffered expert testimony for relevance and reliability pursuant to Rules 401 and 702 of the Federal Rules of Evidence.” Romero v. Allstate Fire & Cas. Ins. Co., No. 14-cv-01522-NYW, 2015 WL 5321441, at *4 (D. Colo. Sept. 14, 2015) (citing Daubert, 509 U.S. at 589-95). For purposes of efficiency, the court finds it appropriate to address this issue now rather than wait for an objection at trial. See Landegger v. Cohen, No. 11-cv-01760-WJM-CBS, 2013 WL 6633434, at *3 (D. Colo. Dec. 16, 2013) (“Although Plaintiff has not filed any motion seeking to exclude the opinions of Defendants’ expert, the Court rules sua sponte that, in the interests of justice, any expert for either party will be precluded from offering testimony as to ultimate legal conclusions.”); Miller v. Baker Implement Co., 439 F.3d 407, 413 (8th Cir. 2006) (“A district court's Daubert inquiry need not take any specific form, and its sua sponte consideration of the admissibility of expert testimony is permissible so long as the court has an adequate record on which to base its ruling.”).

[7]

State Farm raises additional arguments related to Mr. Deitz's familiarity with Colorado insurance standards, asserting that Mr. Deitz's report contains factual inaccuracies. See [#48 at 4]. The court finds that these arguments go to the weight of Mr. Deitz's opinion and are more suited to be addressed in cross-examination. Auraria Student Hous., 2014 WL 4651643, at *5.

[8]

State Farm also appears to argue that Mr. Deitz's opinions should be excluded because they set forth the purpose of underinsured motorist coverage and therefore improperly instruct the jury on the law. See [#48 at 9]. The court finds that the opinions referenced by State Farm, on their face, do not interfere with the court's duty to instruct the jury on the law. If Mr. Deitz's trial testimony encroaches on the court's function, the court will address that issue at trial. See George, 2020 WL 70424, at *9 (“While Mr. Kezer may briefly discuss the purpose or function of UM/UIM coverage, it must be closely tied to a discussion of insurance industry standards.”).

[9]

Ultimately, the court concludes that whether or not the supplemental expert report and/or the affidavit are considered has no bearing on the substantive outcome of the Motion to Exclude Guilford.

[10]

On November 14, 2020, the court extended this discovery deadline to January 4, 2021 for the sole purpose of completing an outstanding Rule 30(b)(6) deposition of State Farm. See [#51].

[11]

In the Expert Report, Mr. Guilford lists “Physician and Other Supplier, PUF 2017” as a “Data Source” in his “Supporting Code Detail” appendix. [#58-5 at 18-21]. He does not explain the nature of that code. See [id.]. However, in the supplemental report, Mr. Guilford indicates that he relied on “Physician and Other Supplier Public Use File” as a reference or data source in forming his opinions, and provides more detailed information with respect to the data found in that source. [#71-4 at 1].

[12]

Rule 702 of the Federal Rules of Evidence does not specify a process by which admissibility of expert opinions is to be determined. See United States v. Nacchio, 608 F. Supp. 2d 1237, 1251 (D. Colo. 2009). Instead, Rule 104 of the Federal Rules of Evidence requires a hearing on preliminary questions of admissibility in civil cases “when justice so requires.” Fed. R. Evid. 104(c)(3). A trial court is authorized to exercise its discretion to craft a procedure for determining whether opinion testimony is admissible. See Adamscheck v. Am. Fam. Mut. Ins. Co., 818 F.3d 576, 586 (10th Cir. 2016) (observing that the trial court has discretion in how to conduct a Daubert analysis); Nacchio, 608 F. Supp. 2d at 1255 (same). Thus, “while a party may request a Daubert hearing, it is within the Court's discretion to determine whether a hearing is necessary.” A.R. by Pacetti v. Corp. of President of Church of Jesus Christ of Latter-Day Saints, No. 12-cv-02197-RM-KLM, 2013 WL 5463518, at *10 (D. Colo. Sept. 30, 2013). Neither side requested an evidentiary hearing, and after review of the motions, the associated briefing, and the applicable case law, this court finds that an evidentiary hearing would not materially assist in the resolution of any of the issues before the court.

[13]

Dr. Jamrich evaluated Officer Stoker's injuries and recommended that he undergo an artificial disc replacement procedure. [#6 at ¶ 46].

Stoker v. State Farm Mut. Auto. Ins. Co.

Citation: 2021 WL 4201583 (D. Colo. 2021)

Summary: The court disregarded the new information provided in the supplemental expert report and affidavit of Mark Guilford for the purposes of adjudicating the Motion to Exclude Guilford, as it violated Rule 26(a) of the Federal Rules of Civil Procedure. The court also granted State Farm's Motion to Strike the affidavit and supplemental report from the record.

Court: United States District Court, D. Colorado

Date decided: May 6, 2021

Judge: Wang, Nina Y.

OFFICER JEREMIAH STOKER and ELIZABETH STOKER, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant Civil Action No. 19-cv-03569-NYW United States District Court, D. Colorado Signed May 06, 2021 Counsel Jacob M. Burg, Kristi Paschall, Stephen Jonathan Burg, Burg Simpson Eldredge Hersh & Jardine PC, Englewood, CO, for Plaintiff. Jon F. Sands, Katherine K. Kust, Sweetbaum Sands Ramming PC, Denver, CO, for Defendant. Wang, Nina Y., United States Magistrate Judge ORDER ON MOTIONS TO EXCLUDE EXPERT TESTIMONY AND MOTION TO STRIKE *1 This matter is before the court on the following pretrial motions: (1) Plaintiff's [sic] Motion to Exclude Testimony of Defendant's Expert Witness, John M. Palmeri (“Motion to Exclude Palmeri”) [#46, filed October 30, 2020]; (2) Defendant's Fed. R. Evid. 702 Motion to Exclude Expert Opinion Testimony of Plaintiffs’ Expert Robert Deitz (“Motion to Exclude Deitz”) [#48, filed November 6, 2020]; (3) Defendant's Fed. R. Evid. 702 Motion to Exclude Expert Opinion Testimony of Plaintiff's [sic] Expert Mark Guilford (“Motion to Exclude Guilford”) [#49, filed November 6, 2020] (collectively, the “Motions to Exclude”); and (4) Motion to Strike Affidavit of Mark Guilford Submitted with Plaintiff's [sic] Response to State Farm's Fed. R. Evid. 702 Motion to Exclude Opinion Testimony of Mark Guilford, and Supplemental Report Dated November 9, 2020 (“Motion to Strike”) [#63, filed December 9, 2020] (and with the Motions to Exclude, “the Motions”). The undersigned Magistrate Judge fully presides over this matter pursuant to the Parties’ Consent [#13] and the Order of Reference dated January 21, 2020 [#14]. The court has reviewed the Motions to Exclude, the Motion to Strike, their respective briefing, the entire docket, and the applicable case law. For the reasons set forth below, I respectfully DENY Plaintiff's [sic] Motion to Exclude Palmeri [#46]; GRANT IN PART and DENY IN PART Defendant's Motion to Exclude Deitz [#48]; GRANT IN PART and DENY IN PART the Motion to Strike [#63]; and DENY Defendant's Motion to Exclude Guilford [#49]. BACKGROUND The court has discussed in detail the background of this case in previous rulings, see, e.g., [#80], and discusses it here only as it pertains to the pending Motions. This case involves an insurance dispute between the Stokers and their insurance provider, State Farm, arising from an incident in which Plaintiff Officer Jeremiah Stoker (“Officer Stoker”) was injured. See [#6]. The Stokers sued State Farm in the District Court for Arapahoe County on or about November 4, 2019, raising claims of (1) breach of contract; (2) bad faith breach of an insurance contract; and (3) unreasonable delay or denial of insurance benefits under Colo. Rev. Stat. §§ 10-13-1115, -1116, each arising out of State Farm's alleged improper refusal to pay what Officer Stoker is owed pursuant to his insurance policies. See [id.].[1] In addition to the damages sought by Officer Stoker, his wife, Elizabeth Stoker (“Ms. Stoker”), seeks damages for loss of consortium. [Id. at 8-9]. The case was removed to federal court under 28 U.S.C. § 1332 on December 17, 2019. See [#1; #6]. Each side has designated expert witnesses in this case who are now the subject of the opposing side's motion to exclude. [#46; #48; #49]. Specifically, State Farm designated John Palmeri (“Mr. Palmeri”) as an “insurance claim handling expert” to opine on issues related to insurance-industry standards and State Farm's handling of Officer Stoker's insurance claim in light of those standards. [#54 at 2]. The Stokers designated Robert Deitz (“Mr. Deitz”) and Mark Guilford (“Mr. Guilford”) as experts in this case. See [#57; #58]. The Stokers retained Mr. Deitz to opine as to “insurance industry standards and State Farm's failure to comply with those standards.” [#57 at 3]. In addition, the Stokers intend to call Mr. Guilford as an expert witness to “provide a breakdown on the reasonable medical value of the surgical procedures” recommended by Officer Stoker's physician. [#58 at 2]. *2 Also at issue in this matter is the Stokers’ submission of (1) an affidavit from Mr. Guilford attached to their Response [#58-5] to the Motion to Exclude Guilford, as well as the Stokers’ inclusion of a letter signed by Mr. Guilford with their Seventh Supplemental Disclosures, see [#71-4],[2] which State Farm characterizes as a supplemental expert report.[3] See [#63]. State Farm filed a Motion to Strike the affidavit and the supplemental expert report on December 9, 2020, arguing that these additional documents constitute untimely expert disclosures under Rule 26(a) of the Federal Rules of Civil Procedure. [Id.]. Being fully advised of the premises, the court turns to considering whether some or all of the opinions offered by Mr. Palmeri, Mr. Deitz, and Mr. Guilford and identified in the Motions to Exclude should be excluded pursuant to Rule 702 of the Federal Rules of Evidence, Daubert v. Merrell Dow Pharmaceuticals, and their progeny. In addition, the court considers whether the affidavit of Mr. Guilford [#58-5] and his purported supplemental expert report [#71-4] should be stricken from the record. LEGAL STANDARDS Rule 702 of the Federal Rules of Evidence permits: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. Fed. R. Evid. 702. As noted by the Advisory Committee when the Rule was promulgated, “[a]n intelligent evaluation of facts is often difficult or impossible without the application of some scientific, technical, or other specialized knowledge.” Fed. R. Evid. 702 advisory committee's note to 1937 rule. It is well established that trial courts are charged with the responsibility of acting as gatekeepers of expert testimony to ensure that expert testimony or evidence admitted is not only relevant, but also reliable. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147–152 (1999); Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 588–89 (1993). To fulfill that gatekeeper function, courts within the United States Court of Appeals for the Tenth Circuit (“Tenth Circuit”) conduct a two-part inquiry. First, this court considers whether the expert's proffered testimony has a reliable basis in the knowledge and experience of his or her discipline by conducting a preliminary inquiry into the expert's qualifications and the admissibility of the proffered evidence, i.e., whether the reasoning or methodology underlying the testimony is valid. Cook v. Rockwell Int'l Corp., 580 F. Supp. 2d 1071, 1082 (D. Colo. 2006) (citing Butler v. A.O. Smith Corp., 400 F.3d 1227, 1232-33 (10th Cir. 2004)). Second, the court considers whether the proposed testimony is sufficiently relevant to the issues presented to the factfinder. See id. The party offering the expert opinion bears the burden of establishing its admissibility, including the foundational requirements by a preponderance of the evidence. United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009); United States v. Crabbe, 556 F. Supp. 2d 1217, 1220 (D. Colo. 2008). *3 “Generally, the district court should focus on an expert's methodology rather than the conclusions it generates.” Dodge v. Cotter Corp., 328 F.3d 1212, 1222 (10th Cir. 2003). To that end, courts consider the following non-exhaustive factors in analyzing whether a particular expert opinion meets the requirements of Rule 702, Daubert, and their progeny: (1) whether the opinion at issue is susceptible to testing and has been subjected to such testing; (2) whether the opinion has been subjected to peer review; (3) whether there is a known or potential rate of error associated with the methodology used and whether there are standards controlling the technique's operation; and (4) whether the theory has been accepted in the scientific community. Id. The court's analysis is opinion-centric, rather than expert-centric. See United States v. Nacchio, 608 F. Supp. 2d 1237, 1251 (D. Colo. 2009). ANALYSIS I. Motion to Exclude Palmeri State Farm designated John Palmeri (“Mr. Palmeri”), an attorney, as an “insurance claim handling expert” to offer testimony about insurance-industry standards and whether State Farm complied with those standards when handling Officer Stoker's claim. [#54 at 2]. The Stokers move to exclude Mr. Palmeri's testimony, arguing that Mr. Palmeri lacks the necessary knowledge and experience to opine on claims handling and insurance industry standards. [#46 at 3]. Specifically, the Stokers note that Mr. Palmeri “has no experience handling, adjusting or managing [underinsured motorist] claims as a claims adjuster or manager,” has not authored any publications related to claims handling, and does not belong to any professional organizations “that write or implement insurance industry standards on insurance industry claims handling.” [Id. at 5-6]. In its Response [#54, filed November 20, 2020], State Farm argues that Mr. Palmeri is qualified to testify about insurance industry standards because (1) for ten to twelve years, Mr. Palmeri “coordinated training for hundreds of insurance adjusters,” [#54 at 4]; (2) Mr. Palmeri has “evaluated a number of claims including pre-litigation claims in the context of the adjustment of that claim,” [id.]; and (3) as an attorney, Mr. Palmeri has “litigated numerous Colorado insurance cases and has been involved in reported Colorado decisions on insurance.” [Id. at 5]. In the alternative, the Stokers assert that Mr. Palmeri's opinions should be excluded because they “consist of unsupported speculation and lack any sort of methodology.” [#46 at 3-4]. The Stokers contend that Mr. Palmeri “provides no analysis into his facts, data, or methodology for how he arrives at his opinion,” [id. at 7], and that Mr. Palmeri's opinions are “simply subjective speculation.” [Id. at 8]. State Farm counters that Mr. Palmeri's opinions are well-explained and grounded in fact and argues that the Stokers’ argument goes towards weight rather than admissibility. [#54 at 6-8]. In his affirmative expert report, Mr. Palmeri provides an overview of insurance law, [#46-12 at 10-11], and states that, in his opinion, “State Farm handled this matter within insurance industry standards.” [Id. at 11; see also id. at 12 (“[I]t is my opinion that State Farm acted reasonably and appropriately, well within insurance industry standards.”)]. Moreover, in his rebuttal expert report, Mr. Palmeri indicates that he reviewed the expert report of the Stokers’ expert, Mr. Deitz, and rebuts Mr. Deitz's opinions regarding the reasonableness of State Farm's actions in handling Officer Stoker's claims. [#46-13 at 1-2]. *4 In defense of Mr. Palmeri's qualifications, State Farm asserts that “[a]ttorneys have routinely testified as claim handling experts in the District of Colorado,” relying on O'Sullivan v. Geico Casualty Co., 233 F. Supp. 3d 917 (D. Colo. 2017). [#54 at 4]. The court is not convinced that O'Sullivan supports State Farm's argument. In O'Sullivan, the defendant challenged the plaintiff's disclosure of an attorney as a rebuttal expert witness on the basis that, because that expert “went beyond the limits of rebutting the opinions of [the defendant's expert],” the expert should have been disclosed as an affirmative expert. 233 F. Supp. 3d at 930-31. While the court ultimately concluded that the expert would be permitted to testify, see [id. at 934], the court did not analyze the expert's qualifications to opine about insurance industry standards as an attorney. See generally [id.]. Similarly, other cases within this Circuit have also permitted attorneys to testify as to insurance industry standards, but have done so without specific analysis on the qualification issue. See, e.g., Domokos v. Shelter Mut. Ins. Co., No. 18-cv-00903-WJM-NRN, 2020 WL 869854, at *3 (D. Colo. Feb. 21, 2020); Etherton v. Owners Ins. Co., No. 10-cv-00892-PAB-KLM, 2013 WL 68702, at *5 (D. Colo. Jan. 7, 2013); Moses v. Halstead, 477 F. Supp. 3d 1119, 1124 (D. Kan. 2007). Due to this lack of analysis, these cases provide little guidance in determining whether Mr. Palmeri is qualified to testify as an expert here. Mr. Palmeri's curriculum vitae indicates that he has substantial experience in the practice of law. See [#54-2]. Specifically, Mr. Palmeri has practiced as an attorney for over 35 years, has produced numerous legal publications, and has participated in a number of legal seminars. [Id. at 1]. However, none of Mr. Palmeri's publications, seminars, or professional organization memberships indicate a specialty or emphasis in insurance law. See generally [id.]. Thus, on its face, Mr. Palmeri's curriculum vitae does not provide robust support for his qualifications to opine as to insurance industry standards. However, Mr. Palmeri indicated in his deposition that he has litigated Colorado insurance cases and has “been involved in reported decisions in Colorado cases [that] set the insurance industry standard.” [#54-1 at 47:11-14].[4] Mr. Palmeri also stated that, approximately “once a month or twice a month,” he is “asked to review cases that typically involve an unreasonable delay or denial or bad faith,” [id. at 10:22-24], and has been hired by insurance companies to evaluate insurance claims, including pre-litigation claims. [Id. at 41:6-15]. When he was at his former law firm, Mr. Palmeri coordinated a training program for insurance adjusters “a number of times,” [id. at 20:20-21:2], which included “presentations regarding bad faith, first-party bad faith, [and] third-party bad faith.” [Id. at 106:2-6]. Mr. Palmeri considers himself an expert in insurance law and insurance matters. [Id. at 11:25-12:2]. The court finds that State Farm has met its burden of demonstrating that Mr. Palmeri is qualified to testify as an expert regarding insurance industry standards. While Mr. Palmeri has not worked himself as a claims handler, this is not dispositive of his qualifications to testify about the insurance industry, see Southerland v. Argonaut Ins. Co., 794 P.2d 1102, 1107 (Colo. App. 1990) (the court “reject[ing] the notion that only present or former employees of the insurance industry are qualified to render expert opinions about its operations”), particularly given Mr. Palmeri's knowledge of and experience in insurance cases. He has routinely litigated Colorado insurance cases, regularly reviews insurance claims, and has been hired by insurance companies to evaluate insurance claims. Ultimately, the court concludes that Mr. Palmeri's testimony concerning industry standards will be helpful to the jury. See Fed. R. Evid. 702; see also Southerland, 794 P.2d at 1106 (permitting two attorneys to testify as expert witnesses because they had “familiarity and knowledge of insurance industry standards in meeting the [defendants’] responsibilities to injured workers.”). *5 Next, the Stokers argue that Mr. Palmeri's opinions should be excluded because they lack reliability. [#46 at 6-9].[5] The Stokers contend that Mr. Palmeri provides no analysis into the facts, data, or methodology behind his opinion that State Farm acted within insurance industry standards. [Id. at 7]. Specifically, the Stokers challenge Mr. Palmeri's conclusions that “insurance issues added to the complexity of the case and that [Officer Stoker's] claims are fairly debatable” as “simply subjective speculation.” [Id. at 8.]. State Farm responds that Mr. Palmeri's are admissible under Rule 702 because they “were reliably reached based on the facts of the case, and application of insurance standards, as set forth in his report.” [#54 at 6]. In his expert report, Mr. Palmeri first indicates which documents he reviewed in forming his opinion [#46-12 at 1-2] and then goes through the facts of the case in detail, citing to the record as necessary. See [id. at 2-10]. Mr. Palmeri opines that “State Farm handled this matter within insurance industry standards,” as Officer Stoker's claim “presented a number of interesting issues.” [Id. at 11]. Specifically, Mr. Palmeri states that Officer Stoker saw a number of medical professionals who employed different approaches to Officer Stoker's medical care and treatment, which, according to Mr. Palmeri, “rendered this case fairly debatable.” [Id. at 11-12]. Moreover, Mr. Palmeri opines that the number of insurance policies at play in this matter “added to the complexity of the claim,” which “provide[s] a backdrop to State Farm's evaluation” of Officer Stoker's claim. [Id. at 12]. Mr. Palmeri then reviewed State Farm's actions in this case and stated that, in his opinion, “State Farm acted reasonably and appropriately, well within insurance industry standards.” [Id.]. The court disagrees with the Stokers’ argument that Mr. Palmeri's opinions are not supported by facts, data, or methodology. Although Mr. Palmeri does not expressly set forth his methodology in his affirmative expert report, his methodology is clear: he reviewed the facts of the case and the relevant documents and analyzed those facts in light of insurance industry standards, of which he is aware due to his experience litigating insurance cases and reviewing insurance claims. See [id. at 10-12]. The court “finds it sufficiently clear from the overall content and organization of [Mr. Palmeri's] report that his methodology amounts to explaining what he knows of insurance industry standards and practices based on his experience, explaining the facts and evidence he reviewed in this case,” and then opining as to why he believes that State Farm acted within industry standards. O'Sullivan, 233 F. Supp. 3d at 925. “[T]his method is, as a general matter, sufficiently reliable” for Mr. Palmeri to offer expert testimony in this case. Id.; see also Domokos, 2020 WL 869854, at *5 (finding that an expert sufficiently set forth how he reached his conclusion through his experience in the insurance industry). The court finds that Mr. Palmeri's opinions are supported by a sufficient methodology and will therefore not exclude Mr. Palmeri's opinions outright. *6 However, the court concludes that Mr. Palmeri cannot opine as to legal standards or whether State Farm violated Colo. Rev. Stat. § 10-3-1104, or any other law, as he attempts to do in his expert report. See e.g., [#46-12 at 12 (“[I]n my opinion, there was no violation of C.R.S. § 10-3-1104.)”].[6] While Mr. Palmeri may testify as to insurance industry standards, and may testify that State Farm's compliance with those standards, he may not direct the jury's understanding of the applicable legal rights and obligations of the parties, i.e. “define the legal parameters within which the jury must exercise its fact-finding function.” See TBL Collectibles, Inc. v. Owners Ins. Co., 285 F. Supp. 3d 1170, 1184 (D. Colo. 2018) (citing Specht v. Jensen, 853 F.2d 805, 809 (10th Cir. 1988)). To do so would be to usurp the role of the trial court. Specht, 853 F.2d at 810. Put another way, Mr. Palmeri is “permitted to testify generally about his understanding of the law and how it impacts his understanding of the standards that govern the insurance industry,” but not to particular holdings of cases or how such holdings apply to this case. See Lua v. QBE Ins. Corp., No. 18-cv-01233-KLM, 2019 WL 5104477, at *5 (D. Colo. Oct. 11, 2019). He also may not “state legal conclusions drawn by applying the law to facts,” A.E. ex rel. Evans v. Indep. Sch. Dist. No. 25, 936 F.2d 472, 476 (10th Cir. 1991), as “such ultimate conclusions would not be helpful to the jury and would improperly intrude on its fact-finding function.” O'Sullivan, 233 F. Supp. 3d at 929. Thus, Mr. Palmeri will not be permitted to testify at trial as to whether State Farm's actions did or did not violate any laws or whether State Farm did or did not act in bad faith. Rather, Mr. Palmeri's opinions must be limited to areas such as whether State Farm did or did not comply with industry standards, or whether its actions were or were not reasonable subject to those industry standards. For the above-stated reasons, I will DENY Plaintiff's [sic] Motion to Exclude Testimony of Defendant's Expert Witness, John M. Palmeri. [#46], but Mr. Palmeri will not be permitted to testify at trial as to legal standards or conclusions as set forth herein. In addition, as other courts in this District have, this court will give a limiting instruction prior to Mr. Palmeri's testimony at trial. Such instruction will make clear that the court will instruct the jury on the law and, to the extent that Mr. Palmeri's testimony differs from the court's instructions, the jury must credit the court's instructions over such testimony. The instruction will also inform the jurors that they may give Mr. Palmeri's testimony whatever weight they deem appropriate, and that they are the ultimate finders of fact in this case. The parties should work together to attempt to stipulate to a proposed limiting instruction and should include such stipulated instruction in their set of instructions. To the extent that the parties are not able to reach a stipulation, the court will accept competing proposed limiting instructions and make an appropriate ruling. King v. Allstate Ins. Co., No. 11-cv-00103-WJM-BNB, 2013 WL 3943607, at *5 (D. Colo. July 31, 2013). II. Motion to Exclude Deitz *7 State Farm seeks to exclude the opinions of the Stokers’ claims handling expert, Mr. Deitz, in their entirety. See [#48]. First, State Farm asserts that Mr. Deitz is not qualified to render opinions on claims handling because, according to State Farm, Mr. Deitz “does not have the requisite knowledge and information regarding the current insurance industry standards” and lacks sufficient experience in claims handling to qualify as an expert. [Id. at 3-4]. State Farm notes that Mr. Deitz's “experience is based on his employment experience with one insurer, over 19 years ago” and he “has not been involved with claim handling and adjusting claims for an insurance company since 2001.” [Id. at 3]. Moreover, State Farm notes that Mr. Deitz is not a lawyer and asserts that “[h]is familiarity with Colorado standards is questionable.” [Id. at 4]. The Stokers respond that Mr. Deitz is qualified as an expert in claims handling because, in addition to Mr. Deitz's two-decade-long career as an insurance claims professional, he currently works as a claims consultant, through which he has “reviewed hundreds of claims filed involving dozens of insurers in approximately forty states.” [#57 at 5]. Moreover, Mr. Deitz has taught CLE seminars about insurance industry standards, including seminars in Colorado, and is “extensively educated in insurance claims practices, Colorado case law, and local jury instructions.” [Id.]. In addition, State Farm argues that Mr. Deitz's opinions are unreliable because (1) Mr. Deitz's opinions do not rely upon industry standards, but his own subjective conclusions, [id. at 5, 7]; (2) Mr. Deitz's opinions would interfere with the court's duty to instruct the jury and usurp the jury's fact-finding role, [id. at 8]; and (3) Mr. Deitz's opinions usurp the jury's function in weighing witness credibility and the evidence in the case. [Id. at 10-12]. The Stokers disagree. They argue that Mr. Deitz's opinions are reliable because he uses a methodology that is well-accepted in the industry and because he explains how he formed his opinions based on that methodology; finally, they assert that his opinions will assist the jury. [Id. at 10, 13]. According to his curriculum vitae, Mr. Deitz worked as a claims representative for Farmers Insurance for 14 years. [#57-2 at 2-3]. For the past 20 years, he has “been engaged nationwide as a consultant and expert witness in the field of insurance, most particularly in claims practices of insurers” at Insurance Claims Consulting, Inc. [Id. at 3]. Mr. Deitz states that he has “personally handled thousands of claim files, and [has] reviewed and supervised several thousand more” and has been “continuously engaged in education and study of insurance claim practices, and reasonable industry customs and standards.” [Id.]. In his expert report, Mr. Deitz states that, based on his “knowledge, skill, training[,] experience, and education,” it is his opinion that State Farm acted contrary to accepted reasonable insurance industry standards, failed to act as an insurance company should have, and “knowingly and with purpose misrepresented and concealed its position on how much coverage was determined to apply to [Officer Stoker's] loss.” [#48-1 at 1, 22, 25]. With respect to State Farm's contention that Mr. Deitz is not qualified as an expert because his career as a claims adjuster ended in 2001, State Farm cites to no authority indicating that an expert's experience or credentials expire after a certain period of time. See [#48]; see also Zander v. Craig Hosp., No. 09-cv-02121-REB-BNB, 2010 WL 3307614, at*2 (D. Colo. Aug. 19, 2010) (“Admittedly, Dr. Mukand's relevant hands-on experience is not of recent vintage, but defendants present no actual authority, aside from their own ipse dixit, for their assertion that an expert's relevant experience need be of any particular vintage to be admissible.”). Moreover, such a contention ignores the fact that Mr. Deitz has worked as an insurance claims consultant for the last two decades. Specifically, Mr. Deitz has “been engaged nationwide as a consultant and expert witness in the field of insurance, most particularly in claims practices of insurers,” during which he has “reviewed over 600 claim files.” [#48-1 at 3]. In addition, Mr. Deitz states that he has been “continuously engaged in education and study of insurance claim practices[ ] and reasonable industry customs and standards” and has attended and presented at insurance-industry workshops and seminars throughout the country. [Id.]. The court finds that, based on his experience, Mr. Deitz is qualified to testify on insurance claims handling. See Am. Auto. Ins. Co. v. First Mercury Ins. Co., No. 13:CV-439 MCA/LF, 2017 WL 4410780, at *5 (D. N.M. Sept. 30, 2017) (rejecting argument that claims handling expert's experience was stale where the expert had “been continuously involved with the insurance industry, including claims handling”).[7] *8 Next, State Farm challenges the reliability of Mr. Deitz's opinions. State Farm argues that (1) Mr. Deitz's opinions are not reliable because they are mere ipse dixit opinions, [#48 at 5]; (2) Mr. Deitz's opinions interfere with the court's duty to instruct the jury on the law, [id. at 8]; and (3) in rendering his opinions, Mr. Deitz usurps the fact-finding role of the jury. [Id. at 10]. The court addresses each of these arguments in turn. “Nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only be the ipse dixit of the expert.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997); see also Mooring Cap. Fund, LLC v. Phoenix Cent., Inc., 2009 WL 4263359, at *5 (W.D. Okla. Feb. 12, 2009) (“[A]n expert's opinions are not admissible merely because the expert says, in effect, ‘trust me, I know.’ ”). State Farm argues that Mr. Deitz's opinions “do not rely upon any reliable industry standards” but instead “direct the jury to speculative ‘because I say so’ conclusions,” [#48 at 6], and highlights a number of opinions that it contends are simply Mr. Deitz's ipse dixit. See [id. at 6-7]. State Farm relies on Turner v. State Farm Mutual Automobile Insurance Co., No. 12-cv-01843-MSK-BNB, 2015 WL 1297844 (D. Colo. Mar. 19, 2015), in support of its argument that Mr. Deitz's opinions are unreliable ipse dixit statements. See [id. at 6]. The court finds that Turner is distinguishable from the present matter. In Turner, the court determined that an expert's opinions lacked an adequate foundation under Rule 702 because, while the expert stated that an insurance company had denied payment in violation of insurance industry standards, he failed to adequately identify those standards and failed to include “[a] source, context, or other information about how [the alleged standards] were formulated or why they are considered industry standards.” 2015 WL 1297844, at *6. According to the court, it was unclear “whether [the expert's opinions were] based on a reliable methodology, personal experience, or a matter of personal belief.” Id. The court concluded that an expert's opinions were “conclusory, ipse dixit[ ] statements.” Id. In contrast to Turner, Mr. Deitz provides an adequate foundation here. In his expert report, Mr. Deitz lists insurance industry standards that he obtained from a Colorado statute—Colo. Rev. Stat. § 1104—and from an insurance law treatise, and expands upon those stated standards explaining why such standards exist and the ways in which a claims adjuster may or may not meet those standards. [#48-1 at 10-15]. Mr. Deitz explains that those standards are “recognized as reasonable industry custom and practice” and are “recognized generally as accepted standards on a national basis.” [Id. at 15-16]. He then states that the basis of his opinions “includes the methodology of analyzing [those] reasonable industry standards in relationship to the facts of the case.” [Id. at 20]. The court cannot conclude that Mr. Deitz's opinions are unsupported ipse dixit statements. Mr. Deitz identifies what he perceives as the relevant insurance industry standards, explains those standards, and states that he relied on his experience in the insurance industry in forming his opinions as to whether State Farm met those standards. [Id. at 1, 20]. Contrary to State Farm's argument, see [#48 at 6], Mr. Deitz is not required to “precisely identif[y] the standards he relies upon to issue” each of his specific opinions. See Domokos, 2020 WL 869854, at *5 (“Mr. Allen makes clear at the beginning of his report, and again in his discussion of insurance industry standards generally, that he reaches his conclusion through 43 years of experience in the insurance industry.... Mr. Allen was not required to repeat all of this again immediately before giving his opinions ‘e’ through ‘k.’ The Court therefore overrules Shelter's objections to these opinions.”). The court finds that Mr. Deitz's opinions are not improper ipse dixit statements. *9 Next, State Farm argues that Mr. Deitz's opinions should be excluded because such opinions interfere with the court's ability to instruct the jury on the applicable law and usurp the jury's fact-finding function. [#48 at 8, 10]. The court addresses these arguments together. According to State Farm, Mr. Deitz's opinions improperly “embrac[e] the ultimate legal questions in this case on whether State Farm acted unreasonably or in bad faith in handling [Officer Stoker's] claims” and should therefore be excluded. [Id. at 8]. Moreover, State Farm asserts that Mr. Deitz's opinions commandeer the jury's fact-finding function by “offer[ing] inappropriate commentary on what the evidence shows.” [Id. at 10]. As set forth above, an expert may testify as to insurance industry standards and may opine as to an insurance company's compliance with those standards. George v Metro. Prop. & Cas. Ins. Co., No. 18-cv-01663-PAB-SKC, 2020 WL 70424, at *8 (D. Colo. Jan. 2, 2020). Thus, the court will not exclude Mr. Deitz's opinions insofar as he offers testimony regarding insurance industry standards and whether he believes State Farm complied with those standards.[8] However, as with Mr. Palmeri, Mr. Deitz will not be permitted to testify as to any ultimate issues in this case, including State Farm's level of culpability in handling Officer Stoker's claim. See, e.g., [#48-1 at 25 (Mr. Deitz opining that “[t]he claims file is evidence that causes me to opine that this claim handling represents indifference, recklessness” and that “State Farm knowingly and with purpose misrepresented and concealed its position on how much coverage was determined to apply to this loss.”)]. See Cox v. Glanz, No. 11-cv-00457-JED-FHM, 2014 WL 916644, at *4 (N.D. Okla. Mar. 10, 2014) (holding that “conclusions regarding deliberate indifference are not appropriate for expert testimony because they are conclusions as to an ultimate issue of law”). In addition, the Stokers are cautioned that Mr. Deitz may not offer any opinions at trial related to the ultimate issue of whether State Farm violated the law. A.E. ex rel. Evans, 936 F.2d at 476. Nor will he be permitted to opine as to the applicable law, as opposed to industry standards. See TBL Collectibles, Inc. v. Owners Ins. Co., 285 F. Supp. 3d at 1184. For these reasons, I will GRANT IN PART and DENY IN PART Defendant's Fed. R. Evid. 702 Motion to Exclude Expert Opinion Testimony of Plaintiffs’ Expert Robert Deitz [#48]. III. Motion to Exclude Guilford and Motion to Strike Finally, State Farm moves to exclude the opinions of Mr. Guilford on the basis that his opinions are unreliable. [#49]. In addition, State Farm seeks to strike Mr. Guilford's affidavit [#58-5] and supplemental expert report [#71-4] from the record under Rule 37(c)(1) of the Federal Rules of Civil Procedure on the basis that they are untimely under Rule 26(a)(2)(A). Because the consideration of those challenged documents could impact the court's ruling on the Motion to Exclude, the court first considers the Motion to Strike and the related arguments.[9] A. Motion to Strike 1. Background *10 Pursuant to the court's original Scheduling Order [#16], the Parties’ affirmative expert disclosures were due on July 27, 2020, while rebuttal expert disclosures were due on August 27, 2020. [#16 at 2]. Thereafter, the Stokers filed Plaintiffs’ Forthwith Motion to Amend the Scheduling Order to Allow a Sixty (60) Day Extension on Expert Disclosures. [#36]. The court granted the Stokers’ motion to amend and reset the affirmative and rebuttal expert disclosure deadlines for September 27, 2020 and October 27, 2020, respectively. [#40 at 2]. In so doing, the court stated that “[n]o further extensions [would] be granted absent extraordinary circumstances.” [Id.]. The discovery deadline was set for November 20, 2020. [Id.].[10] On September 27, 2020, the Stokers disclosed Mr. Guilford as an affirmative expert. [#72 at 2]. State Farm filed its Motion to Exclude Mr. Guilford's opinions on November 6, 2020. [#49]. On November 9, 2020, the Stokers submitted their Seventh Supplemental Disclosures, see [#63-2], which included a letter from Mr. Guilford dated November 9, 2020 and titled “Regarding: Working File for Jeremiah Stoker.” [#71-4]. The Stokers submitted their Response to State Farm's Motion to Exclude on November 25, 2020, which was accompanied by an affidavit from Mr. Guilford setting forth Mr. Guilford's qualifications and the bases for his opinions. See [#58-5]. State Farm asserts that the affidavit and supplemental report “contain new information not included [in] Mr. Guilford's Rule 26(a)(2) report.” [#63 at ¶ 6.] State Farm claims that these documents “are in fact late-disclosed supplemental reports submitted with the apparent aim of strengthening and deepening the opinions expressed in Mr. Guilford's report.” [Id.]. State Farm argues that the documents should be stricken from the record and not considered in the court's ruling on State Farm's Motion to Exclude Guilford because there is no substantial justification for the Stokers’ failure to disclose these documents by the court's deadline. In addition, State Farm contends that permitting the submission of such documents—after State Farm filed its motion to exclude—would prejudice State Farm. [Id. at ¶¶ 9-10]. The Stokers respond that the additional documents do not change Mr. Guilford's opinions or “the costs of [Officer Stoker's] surgical procedures outlined in [Mr. Guilford's] report.” [#71 at 2]. Specifically, the Stokers categorize the supplemental expert report as a “cover letter” that “simply explains what is in [Mr. Guilford's] expert file” and “outlines the data [Mr. Guilford] used[,] which was previously disclosed along with his expert report.” [Id. at 4]. In addition, the Stokers argue that the affidavit merely summarizes Mr. Guilford's qualifications and methodology, which were already disclosed. [Id. at 4]. For these reasons, the Stokers assert that the consideration of the additional documents will not prejudice State Farm, and they argue that the documents in question should not be stricken. [Id. at 6]. 2. Legal Standard Rule 26(a)(2) of the Federal Rules of Civil Procedure provides that a party must disclose to all other parties the identity of any person who may be used at trial to present evidence under Rule 702, 703, or 705 of the Federal Rules of Evidence. Fed. R. Civ. P. 26(a)(2)(A). A retained expert must provide a report that contains “(1) a complete statement of all opinions the witness will express and the basis and reasons for them; (2) the facts or data considered by the witness in forming them (3) any exhibits that will be used to summarize or support them; (4) the witness's qualifications, including a list of all publications authored in the previous 10 years; and (5) a statement of the compensation to be paid for the study and testimony in the case.” Fed. R. Civ. P. 26(a)(2)(B). The Rule also dictates that parties shall disclose affirmative experts first, and disclose rebuttal witnesses within 30 days after the other party's disclosure, unless otherwise set by the court. Fed. R. Civ. P. 26(a)(2)(D). *11 Rule 37(c) governs violations of Rule 26(a)(2). Fed. R. Civ. P. 37(c). Rule 37(c)(1) of the Federal Rules of Civil Procedure provides: If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard: (A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure; (B) may inform the jury of the party's failure; and (C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(iv). Fed. R. Civ. P. 37(c)(1). The determination as to whether a Rule 26(a) violation is justified or harmless is entrusted to the broad discretion of the court. Woodworker's Supply, Inc. v. Principal Mt. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999). In exercising this discretion, the court's consideration is guided by the following four factors: (1) the prejudice or surprise to the impacted party; (2) the ability to cure the prejudice; (3) the potential for trial disruption; and (4) the erring party's bad faith or willfulness. Id. In seeking to avoid a preclusion sanction, the party responsible for a Rule 26(a) violation bears the burden of showing the failure was substantially justified or harmless. Sender v. Mann, 225 F.R.D. 645, 655 (D. Colo. 2004) (citation omitted); see also Contour PAK, Inc. v. Expedice, Inc., No. 08-cv-01091-PAB-KMT, 2009 WL 2490138, at *1 (D. Colo. Aug. 14, 2009) (“The burden of establishing substantial justification and harmlessness is upon the party who is claimed to have failed to make the required disclosures.”) (citation omitted). 3. Analysis Before considering whether the affidavit and supplemental expert report should be stricken, the court must first determine whether there was a Rule 26(a) violation. As set forth above, Rule 26(a) requires that an expert report contain “a complete statement of all opinions the witness will express and the basis and reasons for them,” as well as “the data or other information considered by the witness in forming the opinions.” Fed. R. Civ. P. 26(a)(2)(A). Thus, a Rule 26(a) violation occurs upon the filing of supplemental expert documents if the additional documents contain information beyond what was disclosed in the original expert report. Galaxy Ventures, LLC v. Rosenblum, No. CIV 03-1236 JH/LFG, 2005 WL 5988690, at *4 (D.N.M. July 21, 2005). Supplemental Report. Upon a review of Mr. Guilford's initial expert report and the supplemental report, the court finds that the supplemental report contains new information not included in Mr. Guilford's initial expert report (the “Expert Report”). Mr. Guilford lists several references or data sources in the supplemental report that were not referenced at all in his Expert Report. See [#71-4 at 1-2] (describing data sets and codebooks purportedly used by Mr. Guilford in forming his opinions).[11] And the Stokers do not argue that this additional information was not available to Mr. Guilford prior to issuing the supplemental report, or that the new information is intended to correct the Expert Report, so as to fall into the exception set forth in Rule 26(e). See Fed. R. Civ. P. 26(e) (“A party is under a duty to supplement at appropriate intervals its disclosures under subdivision (a) if the party learns that in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.”). Nor does the record suggest that the additional information is newly discovered since the deadline and disclosure of the original Guilford Report. Thus, this court concludes that the supplemental expert report violates Rule 26. *12 Affidavit. With respect to the affidavit, this court's analysis is more nuanced. In some instances, Mr. Guilford introduces information that is not in his Expert Report at all. For example, in his affidavit, Mr. Guilford states that “[b]ased on [his] 17 years of professional valuation experience, the most appropriate valuation approach for valuing the billed charges of medical services is the Market Approach[,] a common approach used by valuation experts across many industries. [#58-5 at ¶ 12]. He then goes on to explain the “market approach” and indicate that this approach is used in the valuation of medical services. [Id.]. However, Mr. Guilford does not discuss a “market approach” in his original Expert Report. See [#49-1]. Similarly, Mr. Guilford seeks to bolster his credentials by adding information with regard to AccuMed, including State Farm's use of AccuMed in unrelated cases, [#58-5 at ¶ 6], and provides additional information related to his training and education in his affidavit that is not included in his Expert Report. Compare [id. at ¶¶ 13-14] with [#49-1]. Again, the Stokers do not argue nor establish that this information was somehow not available to Mr. Guilford at the time he propounded his original Expert Report, or that this additional information seeks to correct the original Expert Report to bring it into the purview of Rule 26(e). With respect to the new information when compared to Mr. Guilford's original report, the court finds that, contrary to the Stokers’ argument, the originally disclosed Expert Report from Mr. Guilford did not contain “a complete statement of all opinions to be expressed and the basis and reasons therefor” as required by Rule 26(a). Thus, the submission of that additional information—after the discovery deadlines had passed— runs afoul of Rule 26(a). See Fed. R. Civ. P. 26(a) (stating that expert disclosures “shall be made at the times and in the sequence directed by the court”); see also Galaxy Ventures, 2005 WL 5988690, at *4 (finding that supplemental expert report was untimely when it included new information). But in other instances, Mr. Guilford's affidavit further explains concepts or information contained in his original Expert Report. For instance, Mr. Guilford references and explains the 80th percentile methodology in his Expert Report. See [#49-1 at 2]. In his affidavit, Mr. Guilford references the “percentile methodology,” but further details why the 80th percentile method is used, and provides examples of that method's use throughout the industry, including listing other experts who rely on the 80th percentile to determine reasonable value and citing to sources which promote the use of the 80th percentile. [#58-5 at ¶¶ 18-19]. This extrapolation, in the context of responding to a Motion to Exclude that seeks to preclude Mr. Guilford based on deficiencies in his methodology [#49 at 3] seems appropriate to the court—particularly in light of the fact that this court would not expect Mr. Guilford simply to repeat the statements from his Expert Report had the court held an evidentiary hearing to consider the various Daubert challenges.[12] *13 Sanction for Rule 26(a) Violation. Upon a finding of a Rule 26 violation, the court must determine what sanctions, if any, are appropriate. “If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information ... to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or harmless.” Fed. R. Civ. P. 37(c)(1). Courts consider the following factors in determining whether a violation of Rule 26(a) was justified or harmless: “1) the prejudice or surprise to the party against whom the testimony is offered; (2) the ability of the party to cure the prejudice; (3) the extent to which introducing such testimony would disrupt the trial; and (4) the moving party's bad faith or willfulness.” Woodworker's, 170 F.3d at 993. The court notes that, aside from asserting that State Farm has not been prejudiced by their late disclosure, the Stokers make no argument as to the Woodworker's factors. See [#71]. Similarly, while State Farm raises arguments as to bad faith and prejudice, the remaining Woodworker's factors are left unaddressed. See [#63]. With respect to the first Woodworker's factor, court concludes that while there is potential prejudice or surprise to State Farm, given the disclosure of such information after the deadline to file motions under Rule 702, the actual prejudice to State Farm, particularly in the context of the instant Motion to Exclude, is minimal. To ameliorate any potential prejudice, this court simply disregards the new information provided in the supplemental expert report and affidavit in considering the instant Motion to Exclude Guilford. But as to the presentation of trial evidence, this court finds that the Stokers have failed to meet their burden of demonstrating that their Rule 26(a) violations were either justified or harmless. See Contour PAK, 2009 WL 2490138, at *1 (citing Rule 37(c)(1) and noting that the burden of establishing substantial justification and harmlessness is upon the party who is claimed to have failed to make the required disclosures); Auraria Student Hous., 2015 WL 72360, at *4 (implicitly recognizing that the burden under the Woodworker's Supply factors rests with the party who failed to make timely disclosures). Cf. Galaxy Ventures, 2005 WL 5988690, at *5 (“To allow supplementation of reports with new opinions would thwart opposing counsel's ability to evaluate the strength and weakness of a case and to prepare to meet proofs at trial.”). As a result, I will GRANT the Motion to Strike insofar as the Stokers now seek to rely upon the supplemental expert report or Market Approach to define the scope of Mr. Guilford's opinions at trial, and further limit Mr. Guilford to testifying to the credentials he identified in the original Expert Report, but otherwise DENY the Motion to Strike. B. Motion to Exclude State Farm seeks an order “excluding from trial Mr. Guilford's testimony, and striking the opinions contained in his report as inadmissible.” [#49 at 2]. State Farm does not argue that Mr. Guilford is not qualified to render his proffered opinions. See generally [id.]. Instead, State Farm asserts that Mr. Guilford's opinions are not reliable because his methodology is flawed. [Id. at 3-4]. State Farm contends that “[Mr. Guilford's] methodology ... is not reliable because it will always skew to [a] higher charge because it is based on the number of patients who have [been] treated, not the cost of treatment.” [Id. at 4]. State Farm implies that Mr. Guilford's opinion is not “scientifically valid,” [id.], and asserts that, because Mr. Guilford's methodology is unreliable, it is clear that Mr. Guilford “is concluding and finding data to support that conclusion.” [Id. at 5]. Moreover, State Farm argues that Mr. Guilford's opinions should be excluded because, due to his reliance on this flawed methodology, the probative value of his opinion evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. [Id. at 5-6]. In their Response [#58, filed November 25, 2020], the Stokers assert that Mr. Guilford's opinions are based on reliable principles and methods because “numerous large health insurance carriers ... all use the same method as Mr. Guilford to determine a usual, customary, and reasonable value for bills from out of network providers” and argue that the probative value of his opinion evidence is not outweighed by the danger of unfair prejudice because his opinions will be helpful to the jury.” [Id. at 4, 6-7]. To address Defendant's concerns regarding the impact of the supplemental expert report and Mr. Guilford's, all references to the affidavit or supplemental report in the Response are disregarded. *14 In Mr. Guilford's Expert Report, he states that, in his opinion, the reasonable value of the billed charges for the procedures recommended by Dr. Eric Jamrich[13] is $587,687.00. [#49-1 at 1]. His methodology for arriving at that number is as follows: Mr. Guilford analyzed the billed charges related to the above-reference procedures from a “database of over 1.1 million providers located throughout the United States,” “pull[ed] historical billed charges from the databases of the same or similar procedures,” and “determine[d] the billing codes and associated charges of the other medical services that will likely be provided at the time of the procedures.” [Id.]. Then, he created an estimate of the customary and reasonable charges for those procedures based on the 80th percentile of the charges listed in the database. [Id. at 2]. Mr. Guilford explains that he uses the 80th percentile method, which is “broadly accepted” and “widely used” in his field, because it constitutes a “significant percentage” of procedures performed so as to generate a charge that is considered reasonable. [Id.; id. at 16]. In forming his opinions, Mr. Guilford “rel[ied] on bills, medical records, and other documents generated in connection with patients’ treatment,” but did not consider patients’ financial or other resources to obtain medical care. [Id. at 2]. Although State Farm frames its arguments as attacking the reliability of Mr. Guilford's methodology, the court finds that, in reality, State Farm's arguments go toward the correctness of Mr. Guilford's opinions, the choices he made in selecting data to rely upon, and the results of his analysis. See, e.g., [#49 at 4 (State Farm arguing that “Mr. Guilford's methodology is designed to normalize providers who charge higher amounts” and that “[Mr. Guilford's] methodology skews the numbers to the higher charge.”); #62 at 2 (arguing that Mr. Guilford's methodology “can lead to distorted outcomes” and “can lead to distortion in areas dominated by large healthcare providers and consequent control over pricing of procedures”).]. The court's task in ruling on the admissibility of Mr. Guilford's opinions is to determine whether the opinions are reliable, not whether they are correct. Cook, 580 F. Supp. 2d at 1084-85. “Maintaining this distinction between the evidentiary requirement of reliability and the higher standard of whether the expert's conclusions are correct or sufficient to prove the merits is indeed significant as it preserves the fact[-]finding role of the jury.” Id. (quotation omitted); see also Daubert, 509 U.S. at 596 (indicating that expert testimony evidence can by “shaky” and still admissible, and stating that “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking” such evidence). Thus, the court's inquiry cannot constitute a value judgment as to the correctness of a witness's opinion. Bitler v. A.O. Smith Corp., 400 F.3d 1227,1233 (10th Cir. 2005) (“[A] trial court's focus generally should not be upon the precise conclusions reached by the expert, but on the methodology employed in reaching those conclusions.”). In his Expert Report, Mr. Guilford sets forth his qualifications, which State Farm does not challenge. See [#49-1 at 1; #49]. He then explains his “percentile method” and his decision, in employing that method, to use the 80th percentile of billed charges to determine a “reasonable and customary” charge, indicating that this 80th percentile method is “a broadly accepted method utilized by experts in [his] field.” [#49-1 at 2]. He also explains why billed charges are an appropriate metric to use in his analysis. [Id.; id. at 16-17]. The court finds that despite State Farm's arguments to the contrary, Mr. Guilford's opinions are sufficiently reliable to meet the Rule 702 threshold. To the extent that State Farm has identified what it believes are flaws in Mr. Guilford's methodology or analysis, State Farm may raise those issues on cross-examination. See Cook, 580 F. Supp. 2d at 1134 (arguments concerning the data relied upon by the expert go to the weight of the expert's opinions, not their admissibility). *15 State Farm alternately asserts that Mr. Guilford's opinions should be excluded because the probative value of such opinions is outweighed by the danger of unfair prejudice, confusion or the issues, or the risk of misleading the jury. [#49 at 5]. In making this argument, State Farm raises the same or similar contentions as it did above: that Mr. Guilford's methodology wrongly skews the numbers to the highest prices—and ultimately to higher damages. [Id.]. Rule 403 of the Federal Rules of Evidence provides that a court “may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. Thus, even if testimony evidence meets the Rule 702 threshold, it may be excluded from trial if the likelihood that it is misinterpreted or that it confuses the jury outweighs its probative effect. Here, the court concludes that the probative value of this evidence is not outweighed by the danger of unfair prejudice or confusing or misleading the jury. State Farm does not present an argument explaining why this evidence should be excluded beyond asserting that the evidence is incorrect; indeed, State Farm does not identify the unfair prejudice it argues it will suffer absent the exclusion of Mr. Guilford's opinions. See [#49 at 5-6]. Instead, State Farm focuses on its perceived errors in the testimony and states that the jury, upon hearing such testimony, might be confused or misled. [Id.]. However, it is the jury's task to ascertain the validity and credibility of evidence—not the court's. Moreover, to the extent that State Farm argues that the jury might be “misled into believing that [Mr. Guilford's methodology requires the 80th percentile metric,” the court finds that such a risk is low, see [#49-1 at 2 (Mr. Guilford indicating in his Expert Report that the 80th percentile method is “broadly accepted” and “widely used” and explaining the reasons for the purported common usage, but not indicating that only the 80th percentile may be used as a metric)], and thus does not outweigh the probative value of the evidence. As explained above, Mr. Guilford sufficiently explained his methodology and the basis for his opinions. To the extent that State Farm asserts that this evidence is likely to confuse the jury because of the errors in the opinion evidence, State Farm may address this issue at trial via cross-examination. See Two Moms & a Toy, LLC v. Int'l Playthings, LLC, No. 10-cv-02271-PAB-BNB, 2012 WL 5249459, at *6 (D. Colo. Oct. 24, 2012) (holding that “to the extent plaintiff argues that the alleged mistakes in Mr. Milner's report could confuse a jury, the Court finds that this concern is minimized because Two Moms may fully explore this issue at trial during cross-examination.”). For this reason, the court finds that Mr. Guilford's opinions need not be excluded under Rule 403. I will DENY the Motion to Exclude Mr. Guilford's opinions. CONCLUSION For the reasons set forth above, IT IS ORDERED that: (1) Plaintiff's [sic] Motion to Exclude Testimony of Defendant's Expert Witness, John M. Palmeri [#46] is DENIED; (2) The court will sua sponte exclude Mr. Palmeri's opinions insofar as they go to legal standards and/or legal conclusions; (3) Defendant's Fed. R. Evid. 702 Motion to Exclude Expert Opinion Testimony of Plaintiffs’ Expert Robert Deitz [#48] is GRANTED IN PART and DENIED IN PART; *16 (4) The court will exclude Mr. Deitz's opinions insofar as they go to ultimate issues; (5) The Motion to Strike Affidavit of Mark Guilford Submitted with Plaintiff's [sic] Response to State Farm's Fed. R. Evid. 702 Motion to Exclude Opinion Testimony of Mark Guilford, and Supplemental Report Dated November 9, 2020 [#63] is GRANTED IN PART and DENIED IN PART; (6) The affidavit of Mr. Guilford [#58-5] and Mr. Guilford's supplemental report [#71-4] are DISREGARDED for the purposes of adjudicating the Motion to Exclude Guilford; and (7) Defendant's Fed. R. Evid. 702 Motion to Exclude Expert Opinion Testimony of Plaintiff's [sic] Expert Mark Guilford [#49] is DENIED, though his trial testimony will be limited in the manner as described herein. Footnotes [1] On February 22, 2021, the court granted in part and denied in part “Plaintiffs’ Amended Motion for Leave to Amend Complaint to Add Exemplary Damages Against Defendant State Farm Automobile Insurance Company” [#55, filed November 23, 2020] and permitted the Stokers to add a request for exemplary damages for their common law bad faith claim. See [#80]. [2] State Farm references this supplemental document as Exhibit B to its Motion to Strike. See [#63 at ¶ 4]. However, the document attached as Exhibit B does not contain the supplemental document; rather, it appears to be a list of the documents submitted as the Stokers’ Seventh Supplemental Disclosures. See [#63-2]. The supplemental document is attached to the Stokers’ Response [#71] to the Motion to Strike, see [#71-4], which the court will cite in this Order. [3] For purposes of clarity, the court will refer to this document as “the supplemental expert report.” [4] When citing a transcript, the court cites the document number generated by the Electronic Court Filing system, but the page and line numbers generated by the transcript. [5] To the extent that the Stokers argue that Mr. Palmeri's opinions are factually incorrect, see [#46 at 7-8 (asserting that some of Mr. Palmeri's opinions are “wholly unsubstantiated,” “incorrect and baseless,” and “erroneous”), the court concludes that these arguments go to the weight of Mr. Palmeri's testimony rather than its admissibility. See Auraria Student Hous. at the Regency, LLC v. Campus Vill. Apartments, LLC, No. 10-cv-02516-WJM-KLM, 2014 WL 4651643, at *5 (D. Colo. Sept. 18, 2014) (finding that the defendant's argument that an expert analyzed the wrong data “goes to the weight the jury should afford [the expert's] opinions rather than to their admissibility.”). Thus, the court declines to address both Parties’ arguments concerning factual disputes here. See [#46 at 7-8; #54 at 6-7]. [6] The Stokers did not raise this argument in their Motion to Exclude. See [#46]. However, “[a] trial court is obligated to act as ‘gatekeeper’ of proffered expert testimony for relevance and reliability pursuant to Rules 401 and 702 of the Federal Rules of Evidence.” Romero v. Allstate Fire & Cas. Ins. Co., No. 14-cv-01522-NYW, 2015 WL 5321441, at *4 (D. Colo. Sept. 14, 2015) (citing Daubert, 509 U.S. at 589-95). For purposes of efficiency, the court finds it appropriate to address this issue now rather than wait for an objection at trial. See Landegger v. Cohen, No. 11-cv-01760-WJM-CBS, 2013 WL 6633434, at *3 (D. Colo. Dec. 16, 2013) (“Although Plaintiff has not filed any motion seeking to exclude the opinions of Defendants’ expert, the Court rules sua sponte that, in the interests of justice, any expert for either party will be precluded from offering testimony as to ultimate legal conclusions.”); Miller v. Baker Implement Co., 439 F.3d 407, 413 (8th Cir. 2006) (“A district court's Daubert inquiry need not take any specific form, and its sua sponte consideration of the admissibility of expert testimony is permissible so long as the court has an adequate record on which to base its ruling.”). [7] State Farm raises additional arguments related to Mr. Deitz's familiarity with Colorado insurance standards, asserting that Mr. Deitz's report contains factual inaccuracies. See [#48 at 4]. The court finds that these arguments go to the weight of Mr. Deitz's opinion and are more suited to be addressed in cross-examination. Auraria Student Hous., 2014 WL 4651643, at *5. [8] State Farm also appears to argue that Mr. Deitz's opinions should be excluded because they set forth the purpose of underinsured motorist coverage and therefore improperly instruct the jury on the law. See [#48 at 9]. The court finds that the opinions referenced by State Farm, on their face, do not interfere with the court's duty to instruct the jury on the law. If Mr. Deitz's trial testimony encroaches on the court's function, the court will address that issue at trial. See George, 2020 WL 70424, at *9 (“While Mr. Kezer may briefly discuss the purpose or function of UM/UIM coverage, it must be closely tied to a discussion of insurance industry standards.”). [9] Ultimately, the court concludes that whether or not the supplemental expert report and/or the affidavit are considered has no bearing on the substantive outcome of the Motion to Exclude Guilford. [10] On November 14, 2020, the court extended this discovery deadline to January 4, 2021 for the sole purpose of completing an outstanding Rule 30(b)(6) deposition of State Farm. See [#51]. [11] In the Expert Report, Mr. Guilford lists “Physician and Other Supplier, PUF 2017” as a “Data Source” in his “Supporting Code Detail” appendix. [#58-5 at 18-21]. He does not explain the nature of that code. See [id.]. However, in the supplemental report, Mr. Guilford indicates that he relied on “Physician and Other Supplier Public Use File” as a reference or data source in forming his opinions, and provides more detailed information with respect to the data found in that source. [#71-4 at 1]. [12] Rule 702 of the Federal Rules of Evidence does not specify a process by which admissibility of expert opinions is to be determined. See United States v. Nacchio, 608 F. Supp. 2d 1237, 1251 (D. Colo. 2009). Instead, Rule 104 of the Federal Rules of Evidence requires a hearing on preliminary questions of admissibility in civil cases “when justice so requires.” Fed. R. Evid. 104(c)(3). A trial court is authorized to exercise its discretion to craft a procedure for determining whether opinion testimony is admissible. See Adamscheck v. Am. Fam. Mut. Ins. Co., 818 F.3d 576, 586 (10th Cir. 2016) (observing that the trial court has discretion in how to conduct a Daubert analysis); Nacchio, 608 F. Supp. 2d at 1255 (same). Thus, “while a party may request a Daubert hearing, it is within the Court's discretion to determine whether a hearing is necessary.” A.R. by Pacetti v. Corp. of President of Church of Jesus Christ of Latter-Day Saints, No. 12-cv-02197-RM-KLM, 2013 WL 5463518, at *10 (D. Colo. Sept. 30, 2013). Neither side requested an evidentiary hearing, and after review of the motions, the associated briefing, and the applicable case law, this court finds that an evidentiary hearing would not materially assist in the resolution of any of the issues before the court. [13] Dr. Jamrich evaluated Officer Stoker's injuries and recommended that he undergo an artificial disc replacement procedure. [#6 at ¶ 46].